Wife admitted to marijuana use in medical check up - consequences?

[MexicoExpat 18]

3 minutes ago, Boiler said:

A Misrep finding requires an I 601 and I would expect a similar time line assuming the one year delay  significant increased cost. Actually you could be hit with both, I assume the Lawyer recommended you update and that seems logical.

I was under the impression that misrepresentation was a lifetime ban. Being hit with both at once for two years would be very bad. 

 

Is that even a likely scenario? How would we even update the DS-260? He claimed needing to "research that for several hours since he hasn't done it in many years". 

[Ontarkie 14,307]

~~ one post and one that quoted said post removed. It is a TOS Violation to disclosed any part of a Personal Message on the forums.~~

[Boiler 45,735]

2 minutes ago, MexicoExpat said:

I was under the impression that misrepresentation was a lifetime ban. Being hit with both at once for two years would be very bad. 

 

Is that even a likely scenario? How would we even update the DS-260? He claimed needing to "research that for several hours since he hasn't done it in many years". 

Misrep is a life time ban with a waiver involved - I 601. That takes time to process and costs.

 

I assume he has in mind stating it at the start of the interview that you made an error and need to update the form before swearing to its truth.

[Villanelle 4,122]

Perhaps @geowrian can offer you some input on misrep here?  Or you can browse the forums for his postings - hes made lots of posts explaining the specifics involved in misrep issues and consequences (intent, intentional, willful etc) 

 

 

 

[MexicoExpat 18]

So of the two lawyers I spoke to today, the first one said it might be worth updating the DS-260 answer for misrepresentation, but was conflicted on it and thought the 1 year ban for past drug use was more likely. 

 

The second recommended against updating the DS-260 and said the overwhelming majority of people who admit to past use in the medical exam also answered NO to that question, and only generally get the 1 year ban for drug use. 

 

I'm open to hearing other opinions from people who know, but seems like it may be better not to try and update that part. 

[MexicoExpat 18]

Is there any downside at all to updating our DS-260 answers at the beginning of the immigrant visa interview?

 

Both lawyers didn't seem to think it was incredibly likely, but would it make anything at all any worse for our case?

 

I assume they already have any information the doctor provided them from the medical exam - could we possibly make anything worse by starting the interview off with "I need to update a couple of my answers about drugs on my DS-260..."?

[Boiler 45,735]

If you update to reflect the medical report not sure there could be a negative?

 

I really do not know to what extent people have done this before, how did others answer that question, how did their CO view it, may be an element of subjectivity.

 

They have the medical report, now you do not know what the recommendation/conclusion is, but seem very unlikely the issue will be ignored.

 

 

[geowrian 22,337]

Misrep is possible here, although I'm personally on the side that it would be much less likely than likely. There is no criminal offense or inadmissibility here, which is the intent of the question IMO, so I doubt it would be deemed material.

That's just my $0.02...obviously the CO may take a different view of the subject.

 

As noted above, updating the DS-260 does not appear to have any negative value at this point. I see nothing really to lose by doing so, and it can mitigate a claim of a willful misrepresentation.

Edited March 3, 2020 by geowrian

[MexicoExpat 18]

11 hours ago, geowrian said:

Misrep is possible here, although I'm personally on the side that it would be much less likely than likely. There is no criminal offense or inadmissibility here, which is the intent of the question IMO, so I doubt it would be deemed material.

That's just my $0.02...obviously the CO may take a different view of the subject.

 

As noted above, updating the DS-260 does not appear to have any negative value at this point. I see nothing really to lose by doing so, and it can mitigate a claim of a willful misrepresentation.

Thanks for sharing your take on this. In regards to updating the DS-260 if we decide to do so, do you mean by telling the interviewing officer at the beginning of the interview? 

 

I shared the idea with my wife last night that it may be a "no risk, all upside" scenario to share this info with the interviewing officer, and she is incredibly averse to it, refusing to do so. 

 

From her previous experiences applying for her B visa, she knows there is often not much opportunity for her to discuss anything that the interviewing officer isn't asking her directly. 

 

She also has been crying a LOT, daily ever since we realized her few times of past use might be such a big deal, as she does not in any way identify as a drug user. She keeps saying "it's not me, this isn't who I am". Because of that, she feels she can't bring herself to bring this point up at the beginning of her interview, without possibly having a very emotional reaction during the interview. 

 

Hopefully we will be OK, by not bringing it up, though we do have a few weeks to decide whether or not it's best to bring up and if we do decide, another couple weeks to convince her it's a good idea. 

[Boiler 45,735]

Whatever else happens she needs to come to terms with her Drug issue, going into the interview and denying when they have a medical report that says otherwise will not end well.

[MexicoExpat 18]

Just now, Boiler said:

Whatever else happens she needs to come to terms with her Drug issue, going into the interview and denying when they have a medical report that says otherwise will not end well.

She has no intention to deny anything, and if asked she will provide the very same answers as she provided at the medical exam. 

 

What she is averse to is trying to "go over" the interviewing officer in terms of being the first to speak, as well as having to find a way in her own words to bring up the issue, rather than answer any questions asked about the issue honestly. 

[Villanelle 4,122]

This is a really tough one. Usually I am pretty confident on whats the best course of action but with this I just dont know...

 

I also re-read the thread and noticed the part about her not getting a packet. That is a bit concerning but is also inconclusive as every place does things a bit differently. The best I can do is provide you with general information to help you make a decision. The bottom line is though the medical has been done and whats in it is in it. You cant change it and will have to deal with whatever happens. 

 

People talk about the 1 year automatic ban. Now while that is true- there is a 1 year auto ban to simply say such is not entirely accurate as its not looking at the whole picture. You can look up panel physician technical instructions if youd like but basically it outlines in a flow chart type style possible scenarios. And yes, if you follow a certain path it ends up with a 1 year auto ban. Hopefully your Dr did not follow that path. Im inclined to think they didnt based on stating they did not think she was an addict/user but at the same time I wouldnt be surprised if the Dr said such but still followed the path leading to the ban. 

 

Some Drs are just like that. They follow that path and that path only where others are more flexible with it. Technically the Dr is suppose to be evaluating for both substance use disorder and substance induced disorder as outlined in the DSM (the DSM is a guide for psych drs). Substance use covers the continued and frequent use of substances whereas substance induced disorders refer to the immediate effects and the effects of withdrawal. For your specific situation it is in regards to a controlled substance which makes it Class A. When its class A for either use or induced disorder there is a mandatory 1 yr remission period imposed. 

 

So the Dr starts with the question of does the person meet the criteria for use or induced disorder. If they say yes then since its a class A drug you end up with the 1 yr "ban" which is technically a 1 year period of remission. Or the Dr can choose 'unsure' as the answer to the first question. In those cases the person is either referred to a psych dr for eval and the Dr will use info from that to decide or they can even defer making a determination for 3-6 months and require drug tests in that period if they choose and then make a decision based on that new info collected. And obviously the Dr can answer no to the first question.  It is possible for someone to have used drugs (even as little as 4 weeks prior) and not meet the criteria for use or induced disorders. 

 

Because your Dr stated directly they do not think she is a user/addict it would be odd for them to state such and then select yes she meets the criteria but technically it can happen. I suppose if it was more of 'Oh I dont think you have a problem but the pesky DSM I have to go by says you do so it will be up to the Embassy'- which is nonsense. Its not 'up to the Embassy'. The Officer at the Embassy is bound by certain rules and one of them is if you have a class A med issue you are ineligible. 

 

So if her form says she has a class A disorder there is nothing you can do but wait the 1yr for her to clear the remission period. Now there is no class B in this case, its either she is A or she is not and its the Dr who determines that not the Officer in the interview. The most the Officer can do is ask for a new medical if they believe she is inadmissible on health related grounds (that the Dr got it wrong or missed something) -so if she is not an A the process will move forward and the DS can be an issue. Most likely her bringing up wanting to change the DS to reflect drug use is not going to cause the Officer to demand a new medical especially because said drug use was already disclosed in the medical. Perhaps if it wasnt they would- but it was. 

 

Again the Officer is not the one who makes a medical ineligibility determination. Now when someone does reveal on the DS or in the interview drug use it can open up questions to determine if there are possibly criminal inadmissibility issues which there arent. She has no criminal record and is/was not ever involved in trafficking. So as long as she answers any questions honestly the absolute worst thing that can happen is them demanding she gets a new medical done because they dont agree with the Drs determination that she didnt meet the criteria the DSM outlines. (Highly unlikely to happen unless she attends the interview stoned). 

 

Now I understand she has went to tourist interviews before. An immigrant visa interview is a bit different. Yes often the applicant is unable to discuss things outside of what is directly being asked. But thats not really what this is. I understand she is nervous about it but its not that big a deal. If she does decide to try to update the DS then all she has to do is at the start- when she walks in and sits down--- even if they ask her something first- all she has to say is wait, before we begin I think I might have to update my DS. I was reviewing my documents and there was a question on there about controlled substances I think I answered wrong.  (Then let them speak.they will probably want to know what substances and when) well I have used marijuana in my lifetime and I went over it with the med Dr and he said it wasnt an issue but I still need to check off yes for that question is that right??   I would then expect questions about if she was ever arrested for drugs, if she ever sold drugs, transported drugs etc to determine if there is anything there that would make her ineligible. I doubt they will ask her why she checked no but if they do she would have to tell them that honestly she misunderstood what it was asking. 

 

Hope everything works out for you guys. Please update us when you can! 

 

[MexicoExpat 18]

Quote

I also re-read the thread and noticed the part about her not getting a packet. That is a bit concerning but is also inconclusive as every place does things a bit differently. 

I don't believe it was a matter of it being done differently, as she said other people there for their medical exam left with a black, sealed packet. I think it was due to her being able to see the psychiatrist right after the first doctor, and the psychiatrist needing to share their findings with the first doctor to create the full report. They did tell her she will receive an email from them a few days before our interview, but I'm not sure what it's in regards to. 

 

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The most the Officer can do is ask for a new medical if they believe she is inadmissible on health related grounds (that the Dr got it wrong or missed something) -so if she is not an A the process will move forward and the DS can be an issue. Most likely her bringing up wanting to change the DS to reflect drug use is not going to cause the Officer to demand a new medical especially because said drug use was already disclosed in the medical. Perhaps if it wasnt they would- but it was. 

Whether or not to try and correct the DS-260 is the biggest thing I'm concerned about now. We have both accepted our fate with the 1 year ban if that's the result.

 

My wife is still very averse to bringing this up though. She thinks (and has had people tell her) that bringing it up could potentially make the situation worse, or draw more attention to the issue, when there's a possibility it never even comes up because the interviewing officer knows about it and doesn't feel it's a relevant discussion because the doctor said she's OK. 

 

I admit, even I'm conflicted on whether it's a good idea to bring it up. Have spoken with 1 lawyer who said to bring it up and one who said definitely not to. 

 

Even on here, some people are saying bring it up, others are saying not to. Even the person you tagged as knowing about misrep seems to think that isn't the intent of the question asked on the DS-260, which is the whole reason we answered NO in the first place. We believed we were being honest on the DS-260 and definitely were honest in the medical exam. 

 

We just don't know what to do at this point, and are now kicking ourselves for scheduling the medical exam so far in advance of the visa interview, because now it's just a waiting game to see what our fate is. 

[geowrian 22,337]

I would just add that misrep also has a timely retraction protection: https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

Bringing it up at the start of the interview still sounds like the best approach IMO.

 

Quote

6. Timely Retraction

As a defense to inadmissibility for fraud or willful misrepresentation, a person may show that he or she timely retracted or recanted the false statement. The effect of a timely retraction is that the misrepresentation is eliminated as if it had never happened. ^[30] If a person timely retracts the statement, the person is not inadmissible for fraud or willful misrepresentation.

 

For the retraction to be effective, it has to be voluntary and timely. ^[31] The applicant must correct his or her representation before being exposed by the officer or U.S. government official or before the conclusion of the proceeding during which he or she gave false testimony. A retraction can be voluntary and timely if made in response to an officer’s question during which the officer gives the applicant a chance to explain or correct a potential misrepresentation.

 

Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. ^[32] For example, an applicant’s recantation of the false testimony is neither voluntary nor timely if made a year later and only after it becomes apparent that the disclosure of the falsity of the statements is imminent. ^[33] A retraction or recantation is only timely if it is made in the same proceeding in which the person gives the false testimony or misrepresentation. ^[34] 

 

[Villanelle 4,122]

The part about her not getting a sealed packet may be relevant because when someone does their medical in the US (panel physicians do it overseas and civil surgeons do it in the US) but re civil surgeons when someone has a Class A condition the civil surgeon is required to send the results directly to USCIS so you are not given the sealed packet- its sent directly to USCIS.... Im not sure if panel physicians have the same requirements. 

 

I also do agree with the statement that that is not the essence of the DS questions and as Geowrian posted a misrep finding is more likely less possible then possible. Its just important to note that it is a possibility if not corrected (however small a possibility that may be). And that if you choose to correct it the best time to do so is at the start. If not corrected picky CO can make it into an issue if they are so inclined. If they choose to make it an issue then its a valid issue and will have consequences. Where on the flip side bringing it up can open up more questions/stress/hassle however nothing will come out of it as she has no issues they could find from fishing around if they choose to do so as a result of her asking to change the DS. 

 

@Paul & Mary For the cases you are familiar with that had admitted drug use in the medical at that Embassy - do you have any knowledge on what they answered on the DS about controlled substances? If not are you able to find out? 

 

 

 Anyway I think the best answers you are going to get are going to be from looking at those who actually admitted drug use in the medical and finding out what they did re the DS.. Perhaps if you change the thread title you may get responses from those individuals. If you cant change the thread title at this point you can hit the report button on the original post (or any post really) and ask the mods to edit the title for you . However its important to note that VJ TOS does not allow for discussions on illegal or fraudulent activities. Technically providing inaccurate responses on the DS is a big no no and no one here will endorse such. But it should not be a problem to discuss in a thread user experiences who updated/changed their DS at the interview.