When a foreign national seeks admission to the United States, but has been using controlled substances, there are two grounds for inadmissibility that could be triggered directly: Criminal Grounds and Health Grounds. A related health ground described below, regarding non-controlled substances and alcohol, is given for contrast and context. The applicant must be careful to be candid with immigration or consular officers, or border officials, to avoid a misrepresentation ground of inadmissibility.
Inadmissibility for Criminal Convictions or Admissions to a US Immigration Officer related to Drug Offenses
Immigration and Naturalization Act (INA) Sec 212(a)(2)(A)(i)(II)
Persons who (1) have a conviction for, or who (2) admit to having committed acts that constitute the essential elements of, a violation of any law or regulation of a state, the US or a foreign country relating to a controlled substance, are inadmissible. A UK "caution" is considered to be an admission under the second part of this rule. The petty offense exception does not waive petty drug offenses. Youth may help however.
An immigrant visa waiver is available only for a conviction or admission to possession of a single offense of a simple possession of less than 30 g of marijuana under INA sec 212(h). A non-immigrant visa waiver is available for controlled substance ineligibilities.
Mere Usage: Risk of Finding a Permanent Ineligibility Though Unlikely, Improper and Possibly Reversible
If one has a long discussion at a US border or at the US Embassy in London, border or consular officials may well consider someone who has admitted to use of drugs to have admitted the elements of a crime that would constitute a violation of a law of the United States relating to controlled substances. This would be a permanent ineligibility. The US Embassy is not supposed to come to findings like this for mere usage without a conviction or caution. They have however been doing this. It is possible to protest such a finding and have it reversed, by making such a request with the Visa Office in Washington DC, but the results take a long time. They are not guaranteed to be positive either.
Inadmissibility Health Grounds Related to Drug Use
Inadmissibility for Physical or Mental Disorder with Associated Harmful Behavior Including Substance Related Disorder (Alcohol or Non-Controlled Substance Abuse)
“Substance Related Disorders” under INA 212(a)(1)(A)(iii)- Alcohol and Other Non-Controlled Substances – 42 CFR Sec 34.2(h)-(i), 9 FAMe 302.2-7(B)(3). Substance related disorders are found if a US panel physician can document a pattern or use of alcohol or other non-controlled substances (drugs), and can document the effects associated with use on behavior, mental health, physical health.
- A visa applicant, at his interview, is sent to panel physician by a consular officer if a substance related disorder is suspected because of an admission or finding of alcohol or non-controlled drug abuse. The visa applicant is evaluated by the panel physician to see if they have this substance related disorder.
- A waiver is available for this inadmissibility ground, however generally it is not recommended by consular officers. They wait for this ground not to be found by the panel physician because of remission – a lack of substance abuse for 12 months or more. For additional information on alcohol abuse related ineligibility, please read Drink Driving and Admission to the United States.
Inadmissibility for Persons Determined to be Drug Abusers or Addicts
INA 212(a)(1)(A)(iv), 42 CFR Sec 34.2 (h)-(i); 9 FAMe 302.2-8
A Class “A” determination under this section is for drug abuse or addiction related to controlled substances. Such drug abuse or addiction is found when there is a “substance related disorder” with any of the controlled substances listed in Sec 202 of the Controlled Substances Act, Schedule I to V.
The Class “A” determination is a medical determination made by a panel physician. It renders the applicant medically ineligible for a visa. Unlike with alcohol or non-controlled substance abuse, no harmful behavior is required for inadmissibility. 9 FAMe 302.2-8(B)(1).
Remission. As with the alcohol remission, a 12-month period of no substance use or associated harmful behavior is considered full remission. A panel physician has discretion to determine a longer period. 9 FAM e 302.2-8(B)(2)(a)(4). The practical significance of this is that immigrant visa applicants must wait the full 12 months, as there are no waivers available for this ground of ineligibility. 9 FAM e 302.2-8(B)(2)(a)(5).
Consequences of Finding
A Class “A” determination renders the visa applicant ineligible for a visa. A visa waiver could be recommended for a non-immigrant visa, but is not likely to be. A Class “B” determination means that the visa applicant does not have a medically ineligible condition, but has a physical or mental abnormality that departs from normal well-being.
Sometimes the physician will defer classification for 3 to 6 months and request that the applicant return for re-examination to check whether abstinence is present.
Applicants with Prior “INA 212(a)(1)(A)(iv)” Ineligibility
If the last refusal was less than one year old, a consular officer will send the applicant to the panel physical for a new medical exam. This will determine whether the applicant still would have a Class A finding for substance related disorder. 9 FAMe 302.2-8(B)(7). The doctor may well find the applicant still inadmissible, if it is less than 12 months of remission. If the applicant is determined to have a Class B medical condition, then the consular officer can request the prior inadmissibility be removed on their record. If the applicant is otherwise eligible, the consular officer can issue the visa.
If the last refusal was more than a year old, the applicant will still be sent for a new medical:
- If he is found to be in remission, then he will not be found Class A inadmissible and can enter the US.
- If the applicant is found Class B (having a medical condition that is not an ineligibility ground), then the consular officer can request the prior inadmissibility, for being a drug addict, be removed from the applicant’s record. If the applicant is otherwise eligible, the consular officer can issue the visa. 9 FAMe 302.2-8(B)(7).
A non-immigrant waiver is available, but unlikely to be recommended by a consular officer.