Michigan Immigration & Criminal Defense Attorney

Immigration and Criminal Law News

Find answers and information about U.S. immigration law and criminal law issues.

Traps for the Unwary: K1 Visa Denials Based on Past Drug Use

Many K1 fiance visa petitioners and beneficiaries are unaware of the many problems that can arise with a K1 petition after a USCIS approval has been obtained. A USCIS approval is only the first step in the process and essentially just gives the K1 beneficiary the right to apply for a fiance visa at the U.S. Embassy abroad. What most people do not know is that all applicants for K1 fiance visas may be denied a visa if he or she is found to be inadmissible under U.S. immigration law. Because the USCIS does not screen K1 applicants for issues related to inadmissibility it often comes as a surprise to applicants and their U.S. Citizen fiance when the K1 visa is denied at the consular level. Some of the most common grounds of inadmissibility are: criminal convictions, immigration law violations, and health related grounds.

I often come up with subjects for my articles from emails I receive from prospective clients. In the last few weeks I have received several emails from people who have had their K1 visa applications denied based on prior drug use or who have asked if a fiancé visa can be declined if us citizen suffers from drug addiction. In two recent emails, I learned that the applicant did not test positive for drug use but simply admitted to previous drug use during the required medical exam. In both cases, the K1 applicant was denied his or her visa pursuant to section 212(a)(1)(A)(iv)of the Immigration and Nationality Act. This law states that anyone who is found to be a drug abuser or drug addict is inadmissible to the United States. Drug abuse is defined as the non-medical use of a substance listed in section 202 of the Controlled Substances Act. This definition includes even casual drug use that did not result in physical or psychological dependence. This broad definition, when strictly applied, can result in a finding that any person who has used illegal drugs at any time in his or her life is inadmissible to the United States.

In the two cases I mentioned above, the applicant admitted to the use of illegal drugs. This admission alone made the applicant inadmissible. Petition denied.

A Rock and a Hard Place - How to Deal with Past Drug Use

The regulations which govern the administration of medical exams to intending immigrants specifically grants the examining physician the authority to attempt, through physical examination or otherwise, to determine if the intending immigrant is a drug addict or drug user. During the typical medical exam, the examining physician will inquire of the applicant whether he or she has ever used drugs. Because all applicants are prohibited from concealing or misrepresenting any material fact for the purpose of obtaining an immigration benefit, an applicant who does not answer this question honestly may be subject to additional grounds of inadmissibility. On the other hand, if the question is answered honestly the applicant may be found to be inadmissible for drug use. This is a tough position to be in. So what's the best course of action?

As in dealing with all these types of situations the best solution is to be honest and deal with any past drug use head on. If your fiance has used drugs in the past be sure that you retain a qualified immigration attorney to assist you with your K1 fiance visa petition. Waivers of this grounds of inadmissibility may be available in some cases. In others, an experience attorney might be able to help you submit evidence which would help establish that any past drug use should not render the applicant inadmissible.

These types of cases are not easy but it is much better to be prepared and deal with any issues head on rather than wasting time and money on a petition that is certain to be denied.

Additional Consequences of Admissions to Drug use

We already know that a K1 applicant who admits to drug use during his or her medical exam or visa interview may be found inadmissible. However, an admission to drug use can also render the applicant inadmissible for criminal grounds if the use of the drug was illegal at the time and place it occurred. (Presumably this would be the case for almost any drug use that rendered the applicant inadmissible on health related grounds.) The result of this is that an applicant's innocent admission of any illegal drug use--even if experimental or recreational--can lead to the application of two grounds of inadmissibility and an immediate denial of the visa application.

If you are planning on filing a K1 fiance visa petition and your fiance or fiancee has used drugs in the past, it is critical that your case is properly prepared and this potential issue is dealt with head on. Please contact us if you would like to learn about the K1 fiance visa services we offer.