In U.S. immigration law, there are some people who are not eligible for a green card or to apply for a visa. This is called being inadmissible to the United States. One common way a person becomes inadmissible is by committing a crime. However, another condition of inadmissibility that can prevent someone from applying for a visa or a green card is when that person is, or has been, a drug addict or abuser. (See Section 212 of the Immigration and Nationality Act, or I.N.A. and How Health Issues Can Make You Inadmissible to the U.S.)
Many types of inadmissibility allow someone to apply for a "waiver," or legal forgiveness, in order to continue with the immigration case. No waiver is available for a person who is currently a drug addict or abuser.
Nevertheless, a person who is in remission is actually admissible to the United States. The law divides the condition into two categories: a ‘class A’ medical condition and a ‘class B’ medical condition. Current drug abusers or addicts who have a class A medical condition cannot come to the United States. But a drug addict or abuser who is in remission has a class B medical condition and is thus still eligible to apply for green card or visa.
Drug abuse or addiction does not describe one-time use. The government uses the definition of drug abuse and addiction that is found in the Diagnostic and Statistic Manual of Mental Disorders (DSM), which is an authoritative manual published by the American Psychiatric Association (APA).
There are eleven factors that a psychiatrist or doctor can use to determine whether or not someone is a drug abuser or addict, such as regular use and cravings. The only difference, according to the government, between drug abuse and drug addiction is that addiction is more severe.
You might be wondering how the U.S. government will know if a person is a drug addict or abuser. It can find out in a variety of ways. First, an applicant for a visa or green card often has to get a medical examination. The exam includes questions about drug use and history, and may test for drugs in some situations.
An officer can also determine that a person has a drug issue at the interview. If the officer thinks that the drug issue was not covered adequately in the medical examination, the officer can ask for a re-examination.
Once a drug issue has been identified, either by the doctor or by the immigration officer, the applicant must prove remission in order to be allowed to continue with the visa or green card application. A drug addict or abuser is admissible to the U.S. only if that person is in remission.
According to the U.S. government, remission must be full and sustained, meaning that the applicant must have not used the substance or engaged in any related behaviors for a period of at least twelve months. This must be proven with objective evidence, such as proof of rehab, a treatment program, or probation check-ins. An officer may choose to count days of sobriety starting from after a person’s release from a treatment facility, so it is best to have at least 12 months post-rehab before getting a medical examination.
U.S. immigration laws in the U.S. allow an officer to find a person inadmissible based on a crime if the applicant admits to the essential elements of that crime. Sometimes admitting to drug possession can be sufficient to trigger this other ground of inadmissibility (committing a controlled substance offense).
Additionally, any admission of selling drugs or giving them to a third party can trigger a permanent ground of inadmissibility as a drug trafficker. The government can find that a person is a drug trafficker even if the person has never been convicted of selling drugs.
Having a history of drug abuse or addiction does not mean that you cannot succeed in your immigration case. However, it does mean that you should prepare carefully. For example, an applicant with a past history of drug abuse or addiction should make sure that to discuss remission with the doctor for the medical examination. If necessary, the doctor can refer the applicant to a psychiatrist or drug specialist for further examination and treatment.
If the government is unhappy with the medical examination, the officer can refer it to a panel of physicians at the Centers for Disease Control (CDC) for review. This can delay a person’s case significantly. The best way to avoid this is to encourage the doctor performing the examination to include an attachment to the medical examination that describes the doctor’s medical finding of remission in detail.
This is a highly complicated area of the law, and any mistake can have serious consequences. An applicant for a green card or visa who has a past history of drug abuse or addiction might want to consult with an immigration attorney to determine the best way to proceed with the case.