One of the grounds for denying an immigrant visa applicant relates to past drug use. Under the law, a person is not admissible if he admits having committed acts which constitute the elements of a violation of drug laws in the U.S or in any other country.
It appears, however, that consular officials have become more lenient with visa applicants who have admitted past drug use.
Previously, consular officials not only denied the visa application but they also advised the applicant who had admitted the drug use that he was barred from the United States permanently and that at times no waiver was available.
This was the situation that one of our recent clients found himself in. He was the derivative beneficiary of his wife’s employment-based petition. In 2005, he applied for an immigrant visa at the visa unit of the U.S. Embassy in the Philippines but he was refused the visa because of his admission of past drug use. At the time, he and his wife were not represented by counsel.
He made the “admission” of drug use at the medical examination in St. Luke’s in Manila. The panel physician asked him if he had used drugs. Perhaps thinking that it happened so long ago and only once, he responded that he used marijuana and shabu, which is a form of methamphetamine, way back in college or over ten years prior. It should also be noted that he had no criminal record whatsoever.
At the visa interview, the consular officer dropped a bomb on him and said that he was banned and blacklisted from entering the United States, alluding to his past drug use which he admitted at his medical examination.
Thus began his seven-year separation from his wife who went on to reside and work in the U.S. But she was not discouraged. As a green card holder, she filed an immigrant visa petition for him and their children who were also left behind. She remained hopeful that she would someday be reunited with him in the U.S.
After her I-130 petitions were approved last year, the wife asked us to represent her husband, given his previous visa denial due to his admission of drug use. In our letter to the U.S. Embassy in Manila, we explained why the applicant was not ineligible for a visa.
When the drug use is only a mere experimentation, it is not drug abuse as would make the person inadmissible. A single use of drugs constitutes experimentation. In this case, the applicant engaged in a one-time use of drugs which occurred many years ago.
Neither did he develop substance dependence. He was not a drug addict. His one-time use could not and in fact did not result in a compulsive long-term use or any physical, behavioral or psychological problems.
Even though he did admit his drug use to the panel physician, his admission was not of the kind that should bar him from entering the U.S.
Applying a test used by the Board of Immigration Appeals, we argued that the applicant’s admission was not valid for purposes of making him inadmissible because he was not given an adequate definition of any crime or drug offense, including all essential elements thereof, at his medical examination.
The applicant had no arrest, criminal charge or conviction in connection with any crime involving drugs. In addition, the applicable drug law in the Philippines imposed only rehabilitation for a first offense of drug use.
The applicant was able to overcome the earlier finding of inadmissibility. He recently received his immigrant visa and will be reunited with his wife very soon.