Green card lawyers are asked on a regular basis about the possible effects of various criminal convictions on an immigrant's ability to adjust their status to that of lawful permanent resident, i.e., to get a green card so they can live and work permanently in the United States. An experienced immigration attorney will have heard one particular form of this question over and over throughout their immigration law career: can I still get a green card if I have a conviction for marijuana possession in my history? The answer is that it depends. The effect of an arrest and conviction (whether through an admission of guilt, a plea of no contest, or a finding of guilt after a trial) for possession of marijuana on an individual's immigration status in the United States will be determined by several factors; the purpose of this article is to give an overview of some of the factors and issues implicated when an immigrant who's been convicted of illegal marijuana possession wants to adjust status or get a US visa. Persons with convictions in their history who want to adjust status or get a visa for the United States should speak to an attorney to see how US immigration laws will affect them. Informing an immigration attorney of immigration challenges you're facing – or of factors, like a drug conviction, that could affect one's immigration status – is the first step in achieving a person's US immigration goals. A Dallas immigration lawyer with the law firm Heartland Immigration will be glad to discuss your immigration situation with you, no matter where in the world you are. Feel free to contact us by e-mail, or to give one of our green card attorneys a call:
What does US immigration law have to say about drug convictions, and particularly about marijuana?
United States immigration law makes any person who's been convicted of a crime "relating to a controlled substance" inadmissible to the US. This means that anybody who has a conviction in their record, whether it's from a court in the United States or in another country, for anything that involves drugs – including possession – can't normally get a visa for the US, and they also can't get a green card. A person with a drug conviction who applies for a US visa at a United States consulate or embassy abroad will be denied, and will be told they're inadmissible to the US because of the conviction. Similarly, a person with a drug conviction who submits an I-485 to US Citizenship and Immigration Services (USCIS) to adjust status and thereby get a green card will be denied – the immigration authorities may well also initiate deportation proceedings against the person. As one can imagine, one of the most common scenarios in which this law shatters immigration dreams is where an individual has been convicted of marijuana possession. Marijuana is a "controlled substance" within the meaning of the US immigration law at issue, as it's listed in the "Controlled Substances Act," which is maintained by the US government. Whether one thinks marijuana is especially harmful or not, the fact that it's listed in the Controlled Substances Act means that it can make a person inadmissible to the United States, meaning they can't normally get a US visa or a green card if they've been convicted of a crime involving the substance.
Is there a waiver of inadmissibility available for persons convicted of drug offenses?
A waiver of the drug-related inadmissibility exists. A person who qualifies for this waiver can get a US green card through adjustment of status or can get a US visa despite a prior conviction for a drug offense. The waiver, which is granted by USCIS, is only available where the inadmissibility at issue is for a single simple marijuana possession offense; the amount of marijuana at issue can't exceed 30 grams. This means that a person who has been convicted of two or more drug-related offenses can't qualify for the waiver, and therefore can't a US green card or a US visa due to the inadmissibility. And even where only one marijuana possession conviction is at issue, there had to have been 30 or less grams of marijuana involved. For 31 grams and higher, the person is ineligible for the waiver of inadmissibility and therefore won't be able to get a US visa or green card through adjustment of status.
But showing that the conviction was for a single marijuana possession offense of 30 grams or less is only the first step in seeking a waiver so a person can get a waiver of inadmissibility and obtain a green card through adjustment of status or a US visa. For a person who is not the spouse, parent, son or daughter of a US citizen or green card holder, it must additionally be the case that: the act occurred 15 years or more before the time of application for the green card or visa; the person has been "rehabilitated;" and the obtainment of a green card or a US visa wouldn't be contrary to the safety, national welfare, or security of the US. A person seeking a waiver of inadmissibility should consult an experienced immigration lawyer; an immigration attorney can help a person fill out the Form I-601 waiver application in a way that succinctly and persuasively explains how the individual has been rehabilitated and why they should be granted a waiver.
Where the applicant for a waiver of inadmissibility for a single conviction of drug possession of 30 grams or less of marijuana is the spouse, parent, son or daughter of a US citizen or green card holder, the applicant can get the waiver by showing that a refusal to grant it would result in extreme hardship to the citizen or green card holder at issue. This is easier than the situation described in the previous paragraph; the spouse, parent, son or daughter of a US citizen or green card holder does
not have to show that they've been rehabilitated, or that them getting a visa or green card wouldn't be contrary to the security, safety or national welfare of the United States. Additionally, the conviction doesn't have to have been at least 15 years old – that's the major sticking point for many immigrants trying to get a green card through adjustment of status or trying to get a US visa. An experienced immigration attorney can help you understand what it'll take to meet the extreme hardship threshold required in order to get a waiver of inadmissibility for a marijuana-related conviction. Finally, a person who is self-petitioning for a green card under the Violence Against Women Act (VAWA) can also qualify for a waiver of inadmissibility for a marijuana-related conviction.
It's worth noting that this article does not address drugtrafficking – that's a different inadmissibility that brings with it different concerns. If you've been convicted of drug trafficking and want to get a visa or a green card, you should talk to an immigration lawyer.
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About the Author
By Brad Menzer - Brad blogs regularly for Heartland Immigration. You can contact him at: firstname.lastname@example.org
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