I-485 Denied for Prior Marijuana Use - Q&A

User question: I am an American citizen. Last year I married an Australian citizen. I then filed a petition I 130 and an adjustment of status for his permanent residency. In October we went in for his final interview. In November we received the decision letter saying he'd been denied. On the On the decision letter it said he was denied because he admitted to having smoked marijuana but they documented that he smokes on a regular basis when in fact that is not the case; it didn't say that he had to leave or he was going to be deported or anything helpful for that matter. The only way we have found information was through our lawyer who said he needed to leave within 6 months of the letter to avoid triggering a ten year bar. In February my husband and I went back to Australia and that is where we're staying now. We need to come back to the states though because I am attending a University and he has job opportunities as well. Do we have any options so that we can come back to the states to live?

Attorney Curtis:  

Hi there, thanks for posting this question. You will likely face the same issue if applying abroad for an immigrant visa. While I would never recommend lying to the USCIS or consular officers "the cat is out of the bag" so to speak so the past drug use would have to be disclosed during consular processing. The problem with this issue is that it presents to possible grounds of inadmissibility: he could be found inadmissible on health related grounds for being a drug addict; and he could be found inadmissible on criminal grounds for using a drug which is illegal in the United States.

If he is no longer using marijuana, he was not a habitual user and the past use was some time ago a good case could be made that he should not be inadmissible on health related grounds. There is some legal support for the position that experimental use of marijuana does not render an applicant inadmissible. With respect to potential criminal related grounds of inadmissibility, personal use of marijuana is just a misdemeanor in the U.S. so if this issue is raised you could probably obtain a waiver for this grounds of inadmissibility.

You may be able to still use the approved I-130 and just ask for that to be sent to the National Visa Center and then your husband could apply for an immigrant visa at the U.S. Embassy or consulate abroad but this will take some time.

In any event, although I think this may be an approvable case, it will be a difficult one and you should retain an attorney to assist you or the chances of success will not be good. Hope this information was helpful.