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Background Check

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Filed: Timeline

Hello,

I have just begun reading about the k1 process and I have a question about the background check of the USC (that would be me). Almost fifteen years ago I was given a general discharge under honorable conditions from the New York State Army National Guard for having tested positive for marijuana on a random drug test. There was no court martial - I was simply discharged. Is this something which is likely to show up on any of the background checks they do? And if so, would it have any effect on my petition, even if only to slow down the process?

Thanks

-Marco

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Filed: Country: Philippines
Timeline

Hello Marco

I don't think it will slow down the process as long as you have all the documents and attachments pertaining to your discharge. Also, one main disqualification for a beneficiary of a fiance visa is drug use. So if she is found to have used drugs illegally, even if it is just an admission during the interview, she will be disqualified. I am not sure if this applies to the petitioner though, so I advise that you should inquire into this matter. Also, you should inform your fiance about this discharge since it might play a vital role on her being approved during her interview in the US embassy. Full disclosure of everything, even an honorable discharge is important.

( Because if it appears in the record, your fiance will be asked during the interview if she has knowledge of it. I met somebody who was disqualified with prejudice because she did not know that her fiance, the petitioner, has a prior divorce.) She cannot enter the U.S thru a fiance visa after that since the application was denied after the interview. Goodluck Marco and to your fiance. I hope everything works out well for you guys! :)

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Filed: K-1 Visa Country: Costa Rica
Timeline

If this was a single time incident, no additional drug charges - it will have no adverse effect on your petition or the visa interview. There are no IMBRA aspects to this because it was not 3 mor more incidents...

The fact that you were discharged from the military as a result of the positive drug test also has no bearing on your petition.

This will not slow down your petition -USCIS is already slow on their own...

Alan


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Filed: K-1 Visa Country: Vietnam
Timeline

Hello Marco

I don't think it will slow down the process as long as you have all the documents and attachments pertaining to your discharge. Also, one main disqualification for a beneficiary of a fiance visa is drug use. So if she is found to have used drugs illegally, even if it is just an admission during the interview, she will be disqualified. I am not sure if this applies to the petitioner though, so I advise that you should inquire into this matter. Also, you should inform your fiance about this discharge since it might play a vital role on her being approved during her interview in the US embassy. Full disclosure of everything, even an honorable discharge is important.

( Because if it appears in the record, your fiance will be asked during the interview if she has knowledge of it. I met somebody who was disqualified with prejudice because she did not know that her fiance, the petitioner, has a prior divorce.) She cannot enter the U.S thru a fiance visa after that since the application was denied after the interview. Goodluck Marco and to your fiance. I hope everything works out well for you guys! :)

The requirements for the petitioner and the requirements for the beneficiary are completely different. They aren't even described in the same sections of the law.

A single violation involving a controlled substance is enough to make a foreign beneficiary inadmissible - visa denied. If there was only one violation, and if it involved only possession of 30 grams or less of marijuana, then the petitioner could apply for a hardship waiver. Any other controlled substance violation could not be waived.

For the petitioner, controlled substance violations fall under the IMBRA, and they ONLY affect K1 visa applications. A US citizen petitioning for just about any other type of visa could be a serial axe murderer, and they would still be eligible. When there are 3 or more controlled substance or alcohol related violations then a K1 petitioner has to declare them, and provide the relevant court documents. Fewer than 3 violations don't have to be declared. These violations wouldn't affect the petitioner's eligibility to file a petition unless they were asking for a waiver of the IMBRA filing limitations, in which case USCIS may deny the petition (but they aren't required to). If the petitioner doesn't need a waiver of the IMBRA filing limitations (they haven't had a K1 petition approved in the past 2 years, or filed two K1 petitions anytime in the past) then they could STILL be an axe murderer, and STILL have the petition approved.

The other advice about the beneficiary knowing about this stuff is solid. It could very well come up at the interview, and she'll be expected to know about it.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

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Filed: Citizen (pnd) Country: Thailand
Timeline

... then they could STILL be an axe murderer, and STILL have the petition approved.

The other advice about the beneficiary knowing about this stuff is solid. It could very well come up at the interview, and she'll be expected to know about it.

...axe murderer... :wow:

Jim's responses are always so well-informed and make for a very interesting read.


Naturalization N-400

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