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Any Prior Drug Use Can Lead to Inadmissibility

The Immigration & Nationality Act (“INA”) lists several categories of persons who are inadmissible to the United States as immigrants or non-immigrants. One category of inadmissibility which often catches both prospective immigrants and practicioners by surprise is INA §212(a)(1)(A)(iv). This section of the INA provides that any alien “who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.” On its face, this provision of law does not seem unreasonable or problematic. However, the definition of “drug abuser” is very broad and includes many applicants who most of us would not consider drug abusers.

The definition of “drug abuser” can be found at 42 CFR §34.2(g) and defines that term as the “non-medical use of a controlled substance listed in section 202 of the Controlled Substances Act...whch has not necessarily resulted in physical or psychological dependence.” While “non-medical use” is not defined by the regulations the Center for Disease Controls's (“CDC”) instructions to Civil Surgeons describe the phrase to mean “more than experimentation.” The CDC instructions provide an example of “experimentation” as “a single use of marijuana or other non-prescribed psychoative substances such as amphetamines or barbiturates.” Thus, under this definition, an applicant who previously used marijuana or other illegal drugs more than once could be determined to be a “drug abuser.”

Inadmissibility of "Drug Abusers"

The best way to illustrate how this issue arises is by way of example. In the most common example, the issue of the applicant's history of drug use comes up during the course of a medical examination for an immigrant visa or a K1 fiance visa. The examining physician learns of the applicant's prior drug use during the course of the examination either through the patient's admission, blood tests, medical records or other records available to the physician (such as criminal records.) Upon learning of the applicant's past drug use, the Civil Surgeon is supposed to further evaluate the applicant and determine if he or she meets the current Diagnostic and Statistical Manual of Mental Disorders (“DSM”) diagnostic criteria for substance dependence or abuse. An applicant who meets the DSM criteria is consider to have a Class “A” medical condition and is inadmissible. It is important to point out here that an applicant who meets the DSM criteria for abusing alcohol is not Class “A” unless there is also a finding of associated harmful behavior.  See 9 FAM 40.11 N11(c).

In general, the DSM criteria for substance dependence is characterized by compulsive long-term use of a controlled substance despite physical, pyscological, social, occupational or behavioral problems. Tolerance and withdraw are also associated with dependence. The DSM diagnostic criteria for substance abuse is characterized by a pattern of recurrent substance abuse despite adverse consequences and impairment. Importantly, to establish any substance-related diagnosis, the examining physician is supposed to document the pattern of use and the physical, psychological and behavioral effects associated with use or cessation of use. According to CDC technical instructions where applicant's medical history, behavior and history of substance abuse show a pattern of behavior that may meet the DSM criteria for dependence or abuse and where there are questionable maladaptive patterns or impairment, a conclusion should be drawn that there is insufficient data to make a diagnosis. The physician should defer is decision for 3-6 months in order to obtain additional information and allow the patient/applicant to show abstinence. On other hand, where applicant's medical history, behavior and history of substance abuse show a pattern of behavior that does meet the DSM criteria for dependence or abuse a finding of substance abuse or dependence should be made.

However, as a practical matter it does not seem that Civil Surgeons engage in the type of in-depth medical evaluation that is required to make such a diagnosis; rather, any time there is an admission or other finding of illegal drug use a Class “A” determination is made. This is also supported by the CDC instructions which provide that any applicant who is currently using or has used a controlled substance in the last three years shall be classified with a Class “A” condition.

What Can Be Done if You are Found Inadmissible?

There is no waiver available for a finding of inadmissibility under INA §212(a)(1)(A)(iv). However, because the DSM standards do not consider the conditions of substance dependence and substance abuse permanent, a person who was previously refused a visa for drug abuse may reapply. Most consular posts allow applicant's who were found inadmissible to reapply after one year because this is the minimum length of time under the DSM standard for remission. During the reapplication, the applicant is required to undergo a second medical examination to determine if the Class “A” finding still applies. See 9 FAM 40.11 N11(d). If the panel physician determines that the drug abuse is in full, sustained remission he will make a finding of a Class “B” medical condition which allows the consular officer to approve the visa if the applicant is otherwise admissible and no waiver is needed. According to current DSM criteria, sustained, full remission is abstinence of at least 12 months. The panel physician and his/her consultant must use their clinical judgment to determine if a period of 12 months is sufficient for the individual applicant to show sustained, full remission. 

If you or your loved one has a used illegal drugs in the past or has a history of drug abuse and intends to apply for a U.S. immigrant visa or K1 fiance visa please contact me to discuss how I can assist you.