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Overcoming US Visa Denial for Marijuana Possession

September 2021

Mark Shea is a 35 year-old Australian seeking to visit Las Vegas to celebrate his birthday with friends.  Although his mates were eligible to visit the U.S. using the ESTA program, he was not because of a prior marijuana conviction.  Mark attended a U.S. Consular interview in Sydney but his Tourist visa application was denied.  He was told he was inadmissible to the U.S. based on INA Section 212(a)(2)(A)(i)(II) relating to prior possession of marijuana.  INA refers to a particular section of the Immigration Nationality Act relating to controlled substances.  

Mark contacted our office and we reviewed his case.  The first thing we asked to see was a copy of his court record regarding the conviction.  This stated that Mark had previously been charged with three offences:  (1) producing a dangerous drug (cannabis), (2) possession and/or use of a dangerous drug (cannabis), and possession of a thing for use (a bong) in smoking a dangerous drug.

Next, our office advised Mark to go to the Australian Federal Police website for directions in requesting a Finger-Print Based National Police Certificate.  It is important to note that a Namecheck Police Certificate is not sufficient.  The U.S. Consulate requires the Police Certificate to be based on finger-prints.  The advantage of requesting one in advance is to advise our office of the exact offenses that will appear on Mark's record when he attends his consular interview. 

Armed with this key information, we  prepared Mark to submit a new B visa application (Form DS-160).  We reviewed this application in advance prior to submission to make sure the specific offense mentioned on the application matched the description provided on the Fingerprint National Police Certificate.  We then assisted Mark in preparing his application package.  The package now included a cover letter to the consulate from our office informing them that Mark was now represented by legal counsel and attached our Notice of Appearance (Form G-28).  We also prepared a legal memo explaining that although Mark was inadmissible to the U.S. based on his prior marijuana offense, we believed he was eligible for a Waiver of Inadmissibility based on INA Section 212(d)(3).  

In our Waiver request, we made three arguments.  First, Mark's admission posed little risk of harm to American society.  The incident occurred years ago.  The Police Certificate confirmed that this was his one and only offense.  There were no other criminal incidents listed on his Fingerprint Based Police Certificate.  We also provided evidence of his rehabilitation since the marijuana offense and included a letter from his accountant describing Mark's successful business enterprise.  Second, his criminal offense involved a small amount of marijuana for personal use as demonstrated by the fact that he had not been charged with trafficking.  Third, Mark's purpose for visiting the U.S. was to temporarily visit Las Vegas and celebrate his birthday with friends.  As the owner of a small business, Mark was required to return to Australia at the conclusion of his visit and resume his corporate responsibilities.

We also prepared Mark for his consular interview.  Based on our extensive experience, we advised Mark of potential questions and concerns the U.S. consular officer might ask. This gave him greater confidence.  He was now able to reply to questions asked in a more relaxed tone rather a nervous one.  

On the day of his interview, Mark presented our application to the Consular officer and answered his questions briefly and succinctly.    The Consular officer was favorably impressed and referred Mark's matter to the US government's Office of Admissibility.  It took about four months for the Admissibility Office to review our Waiver Request.   The Request was approved!  Mark then received an email from the U.S. consulate requesting his passport.  After providing the passport, it was returned a day later with his new B-2 visa stamp.  He was then able to successfully enter the U.S. and enjoy Las Vegas.  

Please contact our office for more information about grounds of inadmissibility to the U.S. and applying for a Waiver of Inadmissibility.  

Practice area(s): Immigration

Court: US Consulate

Lauren Levin

Levin Immigration Law Founder and Principal  Lauren Levin With nearly 40 years of experience practicing law, Lauren is a noted authority, frequently invited guest speaker, and recognized media expert in explaining and comparing US and Australian immigration law and procedures. Over the course ...

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