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212(a)(2)(C) Drug Trafficking

The inadmissibility provision of the Immigration and Nationality Act related to controlled substance trafficking may lead one to believe that it only applies to narco-barons and their associates, but the real-world reach of US immigration law is much, much further. Most importantly, the law does not require a conviction to bar a visa applicant on these grounds; if the consular officer knows or has “reason to believe” that the applicant is or has been a drug trafficker or assisting one, or was attempting to do so, then that applicant is permanently barred from the United States. This is one of the reasons why this provision is one of the most frequently applied inadmissibility provisions — in fact, not far behind the inadmissibility bar related to those who have convictions for or admitted to drug possession or similar offenses.

This trafficking-related visa decision is usually based on information in US government databases, such as that of the Drug and Enforcement Administration. There are also many unique points relating to this finding:

  1. Even if the visa applicant was engaged in the activity a long time ago, there is no time bar or statute of limitations on this decision. This means that even if the person was involved 20 or 30 years ago, it is irrelevant for purposes of this provision of US law.
  2. Other areas of criminal immigration law do not allow the consular officer to look behind a decision of the judicial system, for example, a plea bargain that allows for the dismissal of certain charges after the completion of a diversionary program and probation. Not so for the drug trafficking provision; in fact, the opposite may be true. The US government may consider a trafficking-related detention or arrest or charges as an indicator of guilt and bar the person.
  3. Consular officers might not even ask questions of or interrogate these visa applicants, but reflexively defer to the “hit” in the database.
  4. Just because a visa was issued before does not mean that a visa will be granted in the future. The government database is constantly being updated; cooperation with local authorities may be strengthened; new policy makers and decisionmakers may have different interpretations of existing information; and changing politics may lead to a harder line being taken. So a person who was arrested for drug possession with an intent to supply in 1990 and had his charges dismissed, might receive B visas in subsequent years. But then when he applies to immigrate in 2017, he may have his visa denied on this ground.

One other “quirk” of this provision of US immigration law relates to the close family members of the suspected trafficker. This bar relates to the spouse and children if they have received a financial or other benefit from this illegal activity in the past five years and they knew or should have known that the benefit derived from the illegal activity. This family-member bar applies even if the trafficker has not applied for a US visa.

These findings can certainly be challenged. Mistaken identities, erroneous information, snitches with agendas, disgruntled former employees or jilted ex-spouses who send ill-motivated poison pen letters to a consulate — these are just some of the reasons to seek reconsideration of a 212(a)(2)(C) finding. In addition, nonimmigrant waivers are available for this finding of inadmissibility. In fact, more than 20% of nonimmigrant visa applicants in the 2014–2016 period were able to overcome the bar with a waiver or a recission of the decision.

In contrast to other criminal-related inadmissibility provisions, there is no immigrant waiver available for this provision of the Immigration and Nationality Act. In fact, applicants for an immigrant visa may be hit with a “double whammy” — having expressed an intent to immigrate and being denied a visa on this ground, the applicant will also have a very difficult time obtaining a nonimmigrant waiver to visit the US in the future. An expression of intent to immigrate in making the application for an immigrant visa is inconsistent with a nonimmigrant visa, and until the applicant overcomes this presumption, a nonimmigrant waiver application will not be adjudicated. This may come as a real shock for those who had previously received nonimmigrant visas.

Because of the complex nature of this provision of the law and the serious consequences, legal assistance should be sought to apply for a nonimmigrant waiver or to challenge this decision. Please contact us to find out how we can help you.

Case Studies

Mr. M was convicted in his home country of Belarus under an archaic provision of the criminal code for “exceeding” his authority in his capacity as a director in his company. The consular officer found that the conviction was for a crime of moral turpitude and permanently barred Mr. M. from the United States. Mr. M. retained our firm, and we conducted an in-depth analysis of crimes which fall under the purview of the statute in question. We presented our findings and arguments to the lawyers in the State Department, who found that the crime did not constitute a crime of moral turpitude and cancelled the inadmissibility bar.

Case of E.M.