Can I still get a visa with a weed charge?

[Miss daley 0]

Fiance was charged with possession of ganja and smoking ganja (weed) in February of 2011 he was 20 at the time. He paid a fine his court documents do not note the amount he was charged with,just the fine amount. He said it was one spliff. His medical did not come clean but he was not smoking but he was around it . We just got a refusal we don't know the reason yet but think it has to do with the weed. What should we do,is their any hope for us to be approved if we refile. He did admit at the interview he smoked in the past. Please no judgement on us. Thank u

[HRQX 4,145]

20 minutes ago, Miss daley said:

What should we do,is their any hope for us to be approved if we refile.

If you marry and he is denied a CR-1, then you can attempt to submit a I-601 waiver per INA 212(h)(1)(B): http://www.smartimmigrationlawyer.com/i-601-waiver-marijuana/

[geowrian 22,337]

You need to determine why he was refused. Even if it was for weed, was it due to the criminal charge (requiring a waiver), or due to the medical (generally requiring up to a year ban and/or testing to confirm he stays clean).

[Miss daley 0]

Ok,so we may still have a chance? Thank u for your time

[Just Paul 4,595]

10 minutes ago, Miss daley said:

Ok,so we may still have a chance? Thank u for your time

Don't waste filing another K-1.  Get married and file a spousal visa.  At least an appeal can be filed if it is denied.

[Thegirl 225]

Can't really appeal if the refusal is a ban bc of the weed. But generally anyone who has admitted to or there is evidence of it in the system is usually denied. But there is hope to get approved after a year of testing with clean tests. 

[Villanelle 4,122]

If he failed the drug test then he is using drugs. Repeated research studies show even spending hours in a closed car with someone who is smoking is not enough to cause a positive urine test. Anyway, you need to know the reason for denial to know how to proceed. Hopefully it was just for the medical. 

[Pinkrlion 2,724]

In the past a spliff was a criminal offense. Now it is not. If he was refused for criminal action, you will need an attorney. Liz Cannon is good with filing waivers for this kind of offense. Please seek her out. 

[Miss daley 0]

So either he will get a ban or may have to do a waiver and possibly file a cr1 instead. Is what I'm seeing. If he gets a ban it will be stated in the refusal letter that they are supposed to send me correct?

[Pinkrlion 2,724]

7 hours ago, Miss daley said:

So either he will get a ban or may have to do a waiver and possibly file a cr1 instead. Is what I'm seeing. If he gets a ban it will be stated in the refusal letter that they are supposed to send me correct?

You can still get the K-1 with the waiver and ban. First see what they state as why the refusal. 

 

1 - Drug Conviction requires a waiver. You will need a lawyer, it is not cheap and a lengthy process. 

 

2 - Failed drug test - one year ban. Will have to prove negative drug test every 3 months for a year. After the year ban will have to email the embassy to schedule new K-1 interview and complete another medical. You will still have to show u maintaned a relationship after the ban. 

 

Edited September 14, 2019 by Pinkrlion

[Pinkrlion 2,724]

Here is a case just like yours. 

 

 

[HRQX 4,145]

1 hour ago, Pinkrlion said:

Drug Conviction requires a waiver. You will need a lawyer, it is not cheap and a lengthy process.

INA 212 is clear; waiver isn't available to fiance: https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1182&num=0&edition=prelim Waiver is available to spouse; like the case you last mentioned:

1 hour ago, Pinkrlion said:

 

 

Edited September 14, 2019 by HRQX

[geowrian 22,337]

8 minutes ago, HRQX said:

INA 212 is clear; waiver isn't available to fiance: https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1182&num=0&edition=prelim Waiver is available to spouse; like the case you last mentioned:

 

It actually is available to a fiance for a K-1 as well.

https://www.uscis.gov/system/files_force/files/form/i-601instr.pdf

Quote

You Are Seeking a Waiver Under INA Section 212(h) or (i) for Certain Criminal Grounds of Inadmissibility Under INA Section 212(a)(2) or for Immigration Fraud or Misrepresentation Under INA Section 212(a)(6)(c)1.

 

Criminal Grounds

If you are found inadmissible based on criminal grounds, you may seek a waiver of inadmissibility for the following:

...

B. A controlled substance violation of the laws and regulations of any country or U.S. state related to a single offense of simple possession of 30 grams or less of marijuana;

...

With the application, you must establish one of the following:

...

C. Your qualifying U.S. citizen, lawful permanent resident relative (spouse, son, daughter, parent), or K visa petitioner would experience extreme hardship if you were denied admission;

 

Edited September 14, 2019 by geowrian

[HRQX 4,145]

6 minutes ago, geowrian said:

It actually is available to a fiance for a K-1 as well.

https://www.uscis.gov/system/files_force/files/form/i-601instr.pdf

Form instructions have errors once in a while. The relevant section:

Quote

The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-

(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-

(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status,

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

 

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or

(C) the alien is a VAWA self-petitioner; and

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

 

[geowrian 22,337]

11 minutes ago, HRQX said:

Form instructions have errors once in a while. The relevant section:

True (although this form has been that way for years and years), but I am aware of others who have successfully obtained said waiver. Much of INA 212 does not take into account a fiance, but the waivers are actually available and issued.

 

Edit: Also see the FAM:

https://fam.state.gov/fam/09FAM/09FAM050207.html#M502_7_3_C_6

Quote

9 FAM 502.7-3(C)(6)  K Visa Ineligibilities, Waivers

(CT:VISA-822;   06-03-2019)

a. Former Exchange Visitor:  Before a K visa may be issued to an applicant who is a former exchange visitor and subject to the provisions of INA 212(e), the applicant must establish that the requirements of INA 212(e) have been fulfilled or that a waiver has been obtained. (See 22 CFR 40.202(b) and 9 FAM 302.13-2.)

b. Vaccination Requirements for K Visa Applicants:  See 9 FAM 302.2-6(B)(3).

c.  Waiver Availability for Applicants Ineligible under INA 212(a):  A K visa is a nonimmigrant visa, and, therefore, K nonimmigrants are generally eligible for INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident.  To determine whether a waiver is available for a K applicant, you must, therefore, first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of U.S. citizens, under either INA 212(g), INA 212(h), INA 212(i), INA 212(a)(9)(B)(v), INA 212(d)(11) or INA 212(d)(12) or similar provisions.  (For a more complete list, see 9 FAM 302 and 9 FAM 305.)

d. No Waiver Possible:  If the K visa applicant is ineligible for a visa on an INA 212(a) ground for which no immigrant waiver is or would be possible after marriage to the petitioner, then the case should not be recommended for an INA 212(d)(3)(A) waiver and no waiver request should be submitted to USCIS. (See 22 CFR 40.301.)

e. INA 212(d)(3)(A) Waiver for K-1 Fiancé(e) Who Would Qualify for Waiver If Married, or for K-3 Spouse:

(1)  If it is determined that the K visa applicant is ineligible to receive a visa under INA 212(a), but that the ineligibility could be waived after (or as a result of the) marriage to the petitioner, refused the applicant under the applicable ineligibility and instruct the applicant to file Form I-601, Application for Waiver of Ground of Inadmissibility, with USCIS per USCIS instructions.

(2)  If the case involves a K-1 fiancé(e), you should be satisfied (before beginning that waiver process) that the petitioner is aware of the ineligibility and still wishes to pursue the marriage.  If not, the petition should be returned to USCIS and the waiver process should be terminated.

(3)  You should follow this same general procedure whether the ineligibility is on medical or nonmedical bases, while taking into account any variant procedure required in certain medical cases as set forth in 9 FAM 302.2.

 

Edited September 14, 2019 by geowrian