Jamaica: denied I-601 and 1-212 (k1-visa pending)

[Enomik 0]

Hello: 

I am a us citizen. Met my fiancé 4 years ago. Applied for a K1 visa for him to leave Jamaica in Nov2015. He had a tourist visa and overstayed on it. He tried to renter the the US in 2015 and was deported and told to file a 212 for permission to re-enter the US. At his first counsular interview in Jamaica for the k1- visa, they told him to file the 1-601 and the I-212 (we filed them). He went in for a second interview where he was told that he failed the initial psychological assessment because he admitted to smoking marijuana recreationally, he was instructed to do a second medical, now a year later. Medical was done but the ceac website has the k1 -visa status as "transferring in progress". The final decision was made on the I-601 and I-212 as "Denied" for overstaying and for drug abuse. The Jamaican US counsulate called him to schedule another interview again for the K1-visa. If USCIS denied the 601& 212 can the Jamaican consulate still issue the K1 visa?

 

note: the I-601 for waiver of grounds of inadmissiblility was filed because of an arrest he had in the US (domestic violence charge) and was ordered by the judge to remain in the US until the trial was over. He was acquitted. All the documents were sent in. He smoked marijuana twice a day for years and stopped 3 months before both medical. 

 

All i want to know is regardless of the circumstance if uscis denies the 601 and 212 for an overstay of more than 180 and for being a drug addict or abuser can the pending K1-visa still be issued? And if so how come and what other options I might have?

Edited January 19, 2017 by Enomik

[Ben&Zian 4,397]

They can't grant a K-1 visa if the waivers have been denied.

 

Other options, perhaps you move to Jamaica to be with him? If he is inadmissible or has a ban, then you have to wait out that ban.

[Transborderwife 4,666]

A k1 cannot be granted to one with inadmissabilities.  I'd suggest moving to him if the waivers are denied

[MacUK 983]

One minor point that maybe those with more knowledge than me might be able to help with.

 

You say he habitually smoked pot every day until 3 months before both medicals?

So he had his first medical and was refused partly based on his drug use, and then carried on smoking it until just before the second medical, is that right?

I may be wrong but I believe he was required to remain drug free the entire year between medicals.

That could be part of the problem there.

You may have to think about your options for moving to his country.

[Ash.1101 1,755]

Honestly you need to talk to him about smoking. If he can't even stop smoking for a year then that's an issue and it would make since why they think he's an abuser of drugs.

You can support his smoking if you want, some people do that, but know that he'll pretty much never get into the US if his idea of quitting (or trying to skirt the medical test) is 3 months before a test.

Twice a day is not social or recreational. That's habitual. If he told his Dr that the number of times he smoked a day was twice at the medical, there won't be a doubt in their mind to mark him as a drug abuser.



A denial of the 601 and 212 means there will be no K-1 visa. The whole point of doing the waiver is so you can WAIVE those issues and not have them used against you for the K-1 visa, it would then be up to the consulate officer if you get the approval of refusal. When the waiver is denied, you are just as inadmissible as you were before, and so there will be no K-1 visa. It won't get to the consulate officer because the consulate officer CAN'T override a denied waiver. The next interview he has will most likely explain why he's being refused the visa and what not.

Like said above, you're most likely either going to have to stay separated or think about moving to his country.

I HEAVILY recommend he stop smoking COMPLETELY. No social smoking, no recreational smoking. Smoking marijuana is illegal federally in the US, yes, some states allow it, but FEDERALLY, which is what immigration is ruled by, it is illegal. There are people who have received bans for simply admitting to smoking once years ago. USCIS takes marijuana smoking seriously, and if you or your fiance want to be together in the US, I would say ya'll might want to take it just as seriously as USCIS does. 

And if he refuses to stop completely, well, just take that as a sign for what he may be willing and unwilling to do for the future. 




Personal Note/Disclaimer: I support the smoking of marijuana, I do not smoke myself but I can see the benefits for SOME people, I'm just aware of what the consequences are and at all given times, until laws change federally, it's never worth smoking because immigration and weed do NOT mix. If you're a USC and you're in a state that it's legal in, more power to you, that's your right and your choice if you want to partake or not. But if you're dealing with ANY form of federal government, and you're willingly smoking, you're just setting yourself up failure. I always even recommend to USC's in states where it's legal to NOT smoke with their immigrant loved one, just in case something happens and LPR/Visa holder is caught near it. It is NOT worth it. If anyone -needs- to smoke so badly they ignore federal law and don't see how it affects their immigration journey then yes, they have an addiction, it may be psychological, but it is a problem.

[LionessDeon 2,060]

When you go for the first medical they ask you how long it has been since you last smoked.

When you go for the second medical they again ask you how long it has been since you last smoked.  They full expect for the person not have have smoked in between the two medical.  They do not think it is ok to just stop smoking a few months prior just to past a medical exam and then continue on with the drug use.

 

Believe me, I know the culture in JA, especially if he is a Rasta.  However, marijuana is illegal in the USA by federal law and immigration is federal.  This medical exam issue could cause a hurdle for you.  Your fiance must start taking this more seriously if he wants to immigrate.  He already has many strikes against him and this is not helping, let alone costing alot of time and money.  Been there, done that.

[Therealworld 90]

Well if you lived in Massachusetts it is no longer against the law here. But LionessDen is very correct.  He actually should have received an automatic 2 years ban due to the smoking.  Your case is very complicated and I hate to say it but you should have consulted with an attorney before starting the process and probably spending so much money.  All I can say is I see you truly love this man, for you have been with him for so long which is nice to see.  It is truly real.  Again please consult with an attorney, they may have some inside information legally that the rest of us may not know.  I had a friend whose at the time fiancé was back then banned for 3 years.  once the ban was over I told her to marry him and do the spousal visa.  She got through with no problems.  He learned his lesson and chose to stop smoking and being around friends who smoked. I wish you best of luck in your process.

[angelbrown 195]

15 hours ago, babygurl said:

Well if you lived in Massachusetts it is no longer against the law here. But LionessDen is very correct.  He actually should have received an automatic 2 years ban due to the smoking.  Your case is very complicated and I hate to say it but you should have consulted with an attorney before starting the process and probably spending so much money.  All I can say is I see you truly love this man, for you have been with him for so long which is nice to see.  It is truly real.  Again please consult with an attorney, they may have some inside information legally that the rest of us may not know.  I had a friend whose at the time fiancé was back then banned for 3 years.  once the ban was over I told her to marry him and do the spousal visa.  She got through with no problems.  He learned his lesson and chose to stop smoking and being around friends who smoked. I wish you best of luck in your process.

Marijuana is legal in some states but immigration falls under federal laws, not state's. Sounds like he doesn't understand the process and/or isn't taking it serious. 

[Ash.1101 1,755]

15 hours ago, babygurl said:

Well if you lived in Massachusetts it is no longer against the law here. But LionessDen is very correct.  He actually should have received an automatic 2 years ban due to the smoking.  Your case is very complicated and I hate to say it but you should have consulted with an attorney before starting the process and probably spending so much money.  All I can say is I see you truly love this man, for you have been with him for so long which is nice to see.  It is truly real.  Again please consult with an attorney, they may have some inside information legally that the rest of us may not know.  I had a friend whose at the time fiancé was back then banned for 3 years.  once the ban was over I told her to marry him and do the spousal visa.  She got through with no problems.  He learned his lesson and chose to stop smoking and being around friends who smoked. I wish you best of luck in your process.

If USCIS did any home visit for him and found weed or paraphernalia they would treat him just as criminally as they would anyone in any other state. Even if it's legal in the state you live it's HEAVILY NOT reccomended to smoke if you are NOT a USC because you can ruin your immigration status by doing so. If you take that risk, it's on you, but do know that you are still breaking federal law by smoking even if you are in a state that it is legal, USC's are forgiven 99.9% of the time, but LPR's or any other visa holder are not.


The best way to put it, is if you are NOT a USC, it's illegal to smoke weed NO MATTER WHERE YOU ARE if you want to live or immigrate to the US.

Edited January 21, 2017 by Ash.1101

[LionessDeon 2,060]

 You do not need to marry him and do a spousal visa once the ban is up. The embassy will hold onto the K-1 petition until the ban is over and you can pick up the process where you left off.  

 Getting a lawyer regarding the ban is not going to accomplish anything. You may want to contact one regarding the waiver that is needed but there's nothing a lawyer can do about lifting this ban.

 Each time he fails the medical exam by continuing smoking they will not just keep adding another year on eventually it's going to cause him a denial.      

[Therealworld 90]

Hello Ash,

 

As long as you follow by the laws of the state it is not a federal offense.  I knew someone who went through this with no status and is allowed to stay here.  They are also releasing people from prison who were arrested based on what is now legal.  Have a good one

[Therealworld 90]

Hi AngelBrown,

 

I do agree with you though he is not taking it serious

[angelbrown 195]

3 hours ago, babygurl said:

Hi AngelBrown,

 

I do agree with you though he is not taking it serious

Yes I meant federal law in terms of immigration, if he wants to immigrate to the US, he has to follow federal laws. As long as he continues to smoke he will not be issued a visa, as smoking marijuana is against federal law. He either doesn't uderstand the process or isn't taking it serious.

[Ash.1101 1,755]

11 hours ago, babygurl said:

Hello Ash,

 

As long as you follow by the laws of the state it is not a federal offense.  I knew someone who went through this with no status and is allowed to stay here.  They are also releasing people from prison who were arrested based on what is now legal.  Have a good one

If it was charged on a state level then it's most likely the police didn't take it all the way it needed to go. If USCIS showed up at your door and you were smoking, you would 100% end up being taken because you're breaking federal law infront of a federal officer. Time and time again, it's been proven that state officials tend to let a lot of things go because it's too much work to deal with ICE or federal.

While some people have gotten lucky, I wouldn't risk anything involving immigration to luck and the state police knowing federal immigration laws.
 

Quote

 

"

Then the officials asked her, under penalty of perjury, if she'd ever smoked marijuana. "I said I'd tried it in Colorado. I thought it was normal—everyone in Colorado smokes, and it's not illegal there," Camila said.

While Colorado has legalized weed, the federal government has not. And since possession, sale, and trafficking of marijuana are all federal crimes, admitting to any of these—even without being convicted—can be a deportable offense for non-citizens. So immigration officials detained Camila in a room in the airport for 15 hours and then flew her back to Chile, banning her from ever returning to the United States.

Cases like Camila's have become increasingly common in recent years as more states legalize marijuana, according to immigration attorney Scott Railton.

"A number of states have legalized [marijuana] for medical and recreational use, but the federal law says marijuana and all its derivatives are still a prohibitive substance," Railton told me, referring to the Controlled Substances Act. "It's a real issue for non-citizens because of the authority of the federal government in their cases."

 

Railton, who has written multiple legal articles about immigration penalties for marijuana use, explained that immigration law is tough on all controlled substances. The Immigration and Nationality Act specifically denies entry to the US to foreigners who were "convicted of, or who admit having committed... a violation of the State, the United States, or a foreign country related to a controlled substance."

And while Camila's case may have been the practice at its zenith, Railton says it's perfectly legal.

"

 

https://www.vice.com/en_us/article/when-immigrants-are-deported-for-smoking-weed

 

 

 

So while your friend may have been lucky, and others may have been lucky, it's never worth risking your immigration status for a "Well it worked out for them, so maybe it'll work out for me even though I know it's illegal for me as a non-USC!"



With that said, it's not advised to advice people on breaking any federal law, regardless of how legal it is in the states. Overall, if it's illegal federally, then it should be taken as illegal no matter what without question since your immigration status can ride on it.


More info:

https://nwsidebar.wsba.org/2014/03/18/immigration-marijuana/

 

Quote

Marijuana will soon be widely available in Washington state, as it already is in Colorado. However, marijuana continues to be a listed substance under the U.S. Controlled Substances Act, which therefore has continuing implications for persons seeking benefits under the U.S. Immigration and Nationality Act.

 

Quote

U.S. Customs doesn’t recognize Washington’s marijuana legalization

Further, initial indications from U.S. Customs and Border Protection are that the border and airport officers will continue to enforce the federal laws and pay no heed to Washington and Colorado’s experiments in legalization. The Department of State’s application form for visa applicants asks, “Have you ever violated, or engaged in a conspiracy to violate any law relating to controlled substances?” Naturalization and adjustment of status applications include similar questions. All of these forms are signed under oath.

If a person is found to have misrepresented themselves in pursuit of an immigration benefit, there are any number of things that can occur, none of which are good. For starters, they can be inadmissible for life.

 

Edited January 24, 2017 by Ash.1101

[Therealworld 90]

All I am saying is that I knew someone at the level of no status that was arrested and went through the courts and they dismissed the case.  He could have been deported again he had no status.  This is Massachusetts. I cannot vouch for any place else