Mrs. S., an Indian national, has worked in California on an H-1B visa since 2003. Her husband, who was in H-4 status, returned to India and applied to renew his H-4 visa at the consulate in Chennai. His application was denied under 221(g), and remained pending for more than 7 months. Mrs. S. then retained us, and within a couple of weeks, Mr. S. received his visa and was reunited with his wife in the US.
The inadmissibility provision of the Immigration and Nationality Act related to controlled substance trafficking may lead one to believe that it only applies to
- 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.
- 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-relateddetention or arrest or charges as an indicator of guilt and bar the person.
- Consular officers might not even ask questions of or interrogate these visa applicants, but reflexively defer to the “hit” in the database.
- 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
These findings can certainly be challenged. Mistaken identities, erroneous information, snitches with agendas, disgruntled former employees or jilted
In contrast to other
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.