People who has used or possessed drugs in the past will likely face significant problems in obtaining an immigrant visa.  Federal law makes aliens who used drugs inadmissible under several different immigration provisions.  

Visa applicants may be declared inadmissible to the U.S. based on a single drug-related criminal conviction.  Some U.S. Embassies, such as the U.S. Embassy in the Philippines, will declare visa applicants inadmissible based on an admission of past illegal drug use.  Of course, trafficking in drugs will result in a finding of inadmissibility and is a lifetime bar.       

There are some exceptions and waivers to inadmissibility for drugs, but they are limited.  One exception to inadmissibility exists in the Ninth Circuit for a first-time drug possession offense that was vacated or expunged by the criminal court.  This exception stems from Ninth Circuit case law, Lujan-Armendariz v. INS.  This case should apply to U.S. Embassies abroad if someone residing within the Ninth Circuit files an immigrant visa petition for the applicant.  However, not all embassies follow this law.  In addition, a waiver exists for one-time use or possession of thirty grams or less of marijuana.  This waiver does not require expungement of the drug offense.

Most commonly, drug issues that render a person inadmissible arise during visa medical examinations.  A medical examination is a prerequisite for obtaining an immigrant visa or adjustment of status in the United State.  The purpose of the medical examinations is to determine whether individuals have a health condition that is a risk to public safety and should prevent the person from being admitted to the U.S. 

In recent years incorrect determinations regarding drug offenses have been made at some U.S. consulates abroad because of improper questioning by medical examiners. Medical examiners have expanded their examination to include more than just finding evidence of drug abuse or addiction.  Through aggressive and sometimes deceptive questioning, medical examiners have found use of drugs in the past without exploring how long ago or how many times drugs were used.  For example, visa applicants have reported that some medical examiners have told them that an admission to drug use will not their affect eligibility for a visa. This is a false statement. 

Examiners in the U.S. are now being encouraged to look for past drug use.  In May 2008, U.S. Citizenship and Immigration Services implemented a new Medical Examination form for obtaining residence in the U.S. through adjustment of status.  This form requires an examination of possible drug use.  Will these new requirements result in witch-hunts, that up to now have been limited to only a couple of Embassies?  

Because of improper findings of inadmissibility by consular officials based on the medical examiner’s findings of past drug use or addiction, lawsuits have been filed challenging those findings.  Unfortunately, these lawsuits have been unsuccessful based on the courts’ findings of consular non-reviewability.  There is, however, a new case in the jurisdiction of the Ninth Circuit, Bustamante v. Mukasey, which may open a door to permit review of these issues in the future.  The breadth of the decision remains to be tested.

Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.

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