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212(a)(2)(A)(i)(II) Drug-Related Crimes

Notwithstanding the growing liberalization of laws relating to the recreational use and possession of certain drugs, the Immigration and Nationality Act provides little solace for those who have been convicted of or admit to committing a drug-related crime. The penalty: a permanent bar from the United States.

The list of controlled substances can be found at this link. This inadmissibility provision does not consider whether the person participated knowingly in the drug-related activity. If the statute under which the conviction was entered was drug-related, then this is enough to render the person inadmissible to the United States. Even if the drug is legal under a state law, this is not relevant under federal law: a conviction or an admission is enough for a consular officer to apply this provision of the Immigration and Nationality Act.

Similarly, an expungement of a drug-related conviction will not impact the visa and immigration consequences, i.e., a permanent bar remains in effect. What makes this provision of the immigration law so draconian is that immigrant waiver relief is limited only to a conviction for marijuana possession of less than 30 grams. Nonimmigrant waivers are still available.

Because of the grave consequences, it is absolutely imperative to seek out immigration legal assistance when presented with charges for a controlled substance-related crime. Entering a diversionary program or pleading to a disorderly conduct charge may be critical to ensuring future visits or the possibility of immigrating to the United States. If a person has already been convicted of a drug-related crime, then in certain circumstances it may be possible to seek out post-conviction relief. This may include a request to vacate or petition for writ of coram nobis; a claim to ineffective assistance of counsel may justify the granting of such a request.

Once this relief is granted, for example, in the form of a dismissal of cause nolle prosequi, then the decision of the consular officer can be challenged. We are one of the relatively few firms with successful experience in obtaining a writ of coram nobis and subsequently having a bar under 212(a)(2)(A)(i)(II) rescinded.

As one can see, this is a very complicated area of the law with potentially very dire results. Because it is a complicated area, consular officers may make a mistake in incorrectly applying it. There is particular hope for a nonimmigrant visa applicants with this problem: more than 40% of them who have been subjected to this bar receive nonimmigrant waivers or successfully challenge the decisions. Please contact us to find out how we can help you.

Case Studies

Ms. D, a Ukrainian citizen, worked for an American expatriate family in Russia. The US Embassy in Moscow denied her "nanny" visa application to work in the United States because she was unable to document her ties to her home country and because the consular officer did not believe that she met the visa requirements. The American businessman contacted us and we were able to help the nanny obtain the visa.

Case of G.D.