Drug Possession Charge...

[USA & ZA 1]

I am engaged to my south African boyfriend and he was very forthcoming about his criminal past. I was wondering what the likely hood of him getting the k-1 visa issued because of this charge.

here are the details...

he was charged with possession of 1 gram of cocaine. He was not fined and had a suspended sentence of 3 years of which he has served just over half of that....he never needed to serve any jail time.

this is his only offense on his record.

we plan to be honest about it and we are also prepared to file the waiver of ineligibility. but i would like to know if this is possible...

thank you

[Veronik 19]

I am engaged to my south African boyfriend and he was very forthcoming about his criminal past. I was wondering what the likely hood of him getting the k-1 visa issued because of this charge.

here are the details...

he was charged with possession of 1 gram of cocaine. He was not fined and had a suspended sentence of 3 years of which he has served just over half of that....he never needed to serve any jail time.

this is his only offense on his record.

we plan to be honest about it and we are also prepared to file the waiver of ineligibility. but i would like to know if this is possible...

thank you

Good morning,

Well... This might be a big deal actually. The USCIS is not going to like it at all. They might request evidence that he's been clean in the last two years, or something like that. But the elligibility criteria are pretty clear. You should be honest about it though, that's for sure. Find all written evidence that he has not been convicted and so forth, and send that with your package. I know this is not fun to hear, but the U.S governement will not usually let someone that has a criminal background in the country, especially one related to drug offenses.

You can also try contacting a lawyer through justanswer.com, and find out what the deal is exactly.

Sorry if this is a little negative, and remember that you guys are absolutely right: being honest is the best way to get an approval!

Good luck!

[JimVaPhuong 4,863]

I am engaged to my south African boyfriend and he was very forthcoming about his criminal past. I was wondering what the likely hood of him getting the k-1 visa issued because of this charge.

here are the details...

he was charged with possession of 1 gram of cocaine. He was not fined and had a suspended sentence of 3 years of which he has served just over half of that....he never needed to serve any jail time.

this is his only offense on his record.

we plan to be honest about it and we are also prepared to file the waiver of ineligibility. but i would like to know if this is possible...

thank you

According to the INA section 212(h), the only controlled substance violation that is waiver eligible is a single offense involving simple possession of marijuana, less than 30 grams. I don't see any provision that would allow someone convicted of possession of any other controlled substance, including cocaine, to be eligible for a waiver.

I'm sorry, but I don't think there is any way your fiance can get a visa. If you decide to consult with a lawyer I strongly suggest you thoroughly educate yourself about the relevant immigration law before you hire anyone, especially section 212 of the INA. There are, unfortunately, lawyers who prey on people in your position.

[sachinky 464]

^^This.

[Rebecca Jo 1,962]

I believe Jim is right.

[Justine+David 218]

Can you move to South Africa?

[USA & ZA 1]

this is really heart breaking but good to know.. i really appreciate all the advice.. I wish i could move to SA, but its just not possible.

[coraliesolms 47]

Cocaine charges are pretty serious.. your best bet is to be honest, and very forthcoming, and hope that there is a way around it. Hire an immigration attorney, or speak to your local congressmans immigration aid.

Im sorry its not the news you wanted, but maybe there is a way

[USA & ZA 1]

well i am not giving up... i just emailed both of my congressmen... i know it is a serious drug but that does not exclude anybody the right to happiness, I know what he is like now and I know that it will be worth it for me to fight for the man that i love...

[sachinky 464]

Unfortunately, you will find out as you go through this proccess, that nothing, as far as immigration is considered, is a "RIGHT."

I wish you all the best in sorting out this situation.

Edited March 27, 2010 by sachinky

[USA & ZA 1]

I know it sounds cliche to say to fight for love and maybe a bit ambitious and I know that it was serious drug, but the circumstances around it were not. I just dont see how someone could be admissible with 30 grams of Marijuana (which is a lot) and not on 1 gram of cocaine without at least hearing the circumstances around it.

The past month i have researched this issue and there is no flat out exclusion regarding that particular drug. I understand that something not noted has just as much meaning as being noted. But I feel that if there was nothing stated out right, there is wiggle room for issuance. I just have to find what makes it wiggle

on another note.... what would happen if him and i married in south africa? could the k-3 be denied as well?

[USA & ZA 1]

I know it sounds cliche to say to fight for love and maybe a bit ambitious and I know that it was serious drug, but the circumstances around it were not. I just dont see how someone could be admissible with 30 grams of Marijuana (which is a lot) and not on 1 gram of cocaine without at least hearing the circumstances around it.

The past month i have researched this issue and there is no flat out exclusion regarding that particular drug. I understand that something not noted has just as much meaning as being noted. But I feel that if there was nothing stated out right, there is wiggle room for issuance. I just have to find what makes it wiggle

[JimVaPhuong 4,863]

Unfortunately, you will find out as you go through this proccess, that nothing, as far as immigration is considered, is a "RIGHT."

I wish you all the best in sorting out this situation.

Yep!

Also, not to be a nitpicker (even though I'm really good at nitpicking...), you have an "inalienable right" to "the pursuit of happiness". In this lifelong pursuit, many of us never actually find that happiness, but it doesn't amount to our right to pursue it having been trampled. I think our founding fathers were very careful not to state that we had a right to "happiness".

Yes, you do have the right to pursue your own happiness. You don't have the right to bring any foreigner into the US and grant them legal immigrant status, nor does the foreigner have any right to immigrate. These are privileges that you request from the US government, and you do so at your own expense. If you are eligible to petition for him, and he is eligible to immigrate, then everything will work out. Unfortunately, in this case, the law is pretty clear - he's not eligible to come to the US. Does that suck? Yes, without a doubt. If he were a US citizen, in many states that same violation would have gotten him a stern warning and a slap on the wrist from the judge. With immigration law, however, that violation leaves him without any recourse.

I hope your congressional representatives are able to help you, but I rather doubt they will be able to. It's outside their authority to grant any sort of special treatment, or "pardon" an inadmissibility. What they are best at, when it comes to immigration, is kicking other government agencies in the pants to get them moving on a stalled case.

I'm not trying to rain on your parade, but you should know what you're up against. An honest attorney would tell you the same thing, which is why I cautioned you to research the immigration law before you hire an attorney. A dishonest attorney would tell you "Sure, we've got a good chance!", and then ask for a sizable retainer. Once the petition was approved, he'd ask you to fork over more cash to deal with the consulate stage. Once your fiance was denied the visa, he'd ask for even MORE cash to handle the waiver application. When the waiver was denied, he might even ask for more money to try an appeal with USCIS. In the end, you would be out thousands of dollars, and you'd be right where you are now.

Do your research, talk to your representatives, consult with attorneys (but DON'T hand over any cash), and then decide how you want to proceed.

I know it sounds cliche to say to fight for love and maybe a bit ambitious and I know that it was serious drug, but the circumstances around it were not. I just dont see how someone could be admissible with 30 grams of Marijuana (which is a lot) and not on 1 gram of cocaine without at least hearing the circumstances around it.

The past month i have researched this issue and there is no flat out exclusion regarding that particular drug. I understand that something not noted has just as much meaning as being noted. But I feel that if there was nothing stated out right, there is wiggle room for issuance. I just have to find what makes it wiggle

on another note.... what would happen if him and i married in south africa? could the k-3 be denied as well?

Now you're grasping at straws.

He is inadmissible, according to the INA, section (a)(2)(A)(II). That section of the INA specifically cites 21 U.S.C. 802, which is the section of Code of Federal Regulations that defines controlled substances. Cocaine is specifically listed in paragraph 17.C of the Federal Code, and falls under the classification of "narcotic drug".

Someone who got caught with marijuana is ALSO inadmissible, according to the same section of the INA. However, if that person was caught with less than 30 grams, and they weren't trying to sell it (i.e., trafficking), then they would be eligible for a waiver of their inadmissibility, either by waiting 15 years, or by a hardship waiver from a US citizen. There is no provision in the INA for a waiver for any other controlled substance.

Someone who is inadmissible would not be eligible for any type of visa.

[USA & ZA 1]

I want to make something clear here...

I did not write my congresswoman to grant special favors... I simply asked her the same question I asked here. I asked her if this was a clear case of denial, or if there was a chance to appeal...

I feel that some of you maybe blinded by the comfort of your own situation and cant see that there maybe room for possibility, so I just went to the source... my government...

I know what the law states and I am pretty certain that there are folks that got into this country on much serious offenses, or maybe even got here for other reasons other than marriage.

I am happy that all of you had everything lined up, according to the laws for your marriages...but there is nothing wrong with exhausting all options, or, "pulling straws" as you would call it for something that i believe in.

[Martyshk 137]

I know what the law states and I am pretty certain that there are folks that got into this country on much serious offenses, or maybe even got here for other reasons other than marriage.

If they got here, they didn't get here legally.

Unfortunately, the law is the law.