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The Legal Immigrant podcast covers U.S. immigration problems that Dyan Williams Law PLLC can help you solve. Through success stories and Q&As, we'll discuss waivers of inadmissibility due to fraud or misrepresentation, criminal offense, unlawful presence, illegal entries, and removal orders; motions to reconsider inadmissibility bars; marriage-based green card, spousal immigrant visa, K-1 fiance visa; naturalization issues; and more.
Website: www.dyanwilliamslaw.com
If you were convicted of or admit to committing a drug offense, this subjects you to a permanent bar from the United States. This means you will not be eligible to receive a U.S. visa or admission to the U.S. on crime-related and perhaps health-related grounds. There are, however, exceptions to the rule.
That said, is Prince Harry’s U.S. visa subject to revocation due to his public admission to illicit drug use? He does this in his memoir book Spare and in several media interviews. While this might be no big deal for the Duke of Sussex, such public admissions would typically carry high US immigration risks.
Welcome to The Legal Immigrant. My name is Dyan Williams and I’m a US immigration attorney. I can help you overcome crime-related inadmissibility bars, through a waiver request or motion to reconsider, as long you qualify for the relief.
On May 1, 2023, the Heritage Foundation sued the U.S. Department of Homeland Security (DHS) to obtain a copy of Prince Harry’s U.S. immigration records. Unlike criminal records, immigration records are generally considered private and confidential. Retrieving another person’s immigration records, without his express consent, under the Freedom of Information Act, is typically not possible. But the Foundation has argued that U.S. taxpayers ought to know whether Prince Harry was properly vetted when he was allowed into the U.S.
In its lawsuit filed in the U.S. District Court for the District of Columbia, the Heritage Foundation states:
“Widespread and continuous media coverage has surfaced the question of whether DHS properly admitted the Duke of Sussex in light of the fact that he has publicly admitted to the essential elements of a number of drug offenses in both the United States and abroad.”
"Intense media coverage has also surfaced the question of whether DHS may have improperly granted the Duke of Sussex a waiver to enter the country on a non-immigrant visa given his history of admissions to the essential elements of drug offenses."
The exact nature of Prince Harry’s U.S. immigration status is currently unknown. One possibility is a spousal immigrant visa based on his marriage to actress Meghan Markle, assuming she is a U.S. citizen or permanent resident. Another possibility is the O-1 visa, which is granted to applicants with “extraordinary ability in the sciences, arts, education, business, or athletics,” or due to extraordinary achievement in film or television.
Unlike with the H-1B or L-1 visa, there is no overall time limit as to how long a person may stay in the U.S. in O-1 status. But it must be renewed every three years. Harry and Meghan now reside in California and star in a Netflix documentary series about their lives.
Because I have not read or picked up Prince Harry’s book, I relied on news reports to understand the types of admissions he made. Reportedly, in Spare, he admits to past and ongoing use of marijuana, cocaine, psychedelic mushrooms, and other drugs, and that he was high on weed when Meghan made a FaceTime call to him after their first date. His own words in his book and in media interviews, about his drug use, provide a basis for the U.S. immigration agencies to look further into his visa eligibility.
But public admissions, alone, are not enough to find him permanently inadmissible to the United States.
When there is no conviction, certain procedural steps must be followed to obtain a legally valid admission to apply the crime-related bar. Furthermore, Prince Harry could have already made a legally valid admission to drug use in a nonimmigrant visa application and received a 212(d)(3) waiver of inadmissibility, despite his history of admissions to multiple drug offenses.
A person who is convicted of or who legally admits to multiple drug offenses cannot obtain a Form I-601 immigrant waiver in the green card context. Compared to the 212(d)(3) waiver, the I-601 waiver in permanent resident cases has much stricter eligibility standards.
Here are 4 tips to consider in dealing with the U.S. immigration consequences of a controlled substance violation.
Tip #1 is to consider whether there is a conviction for or admission to committing the essential elements of a specific drug offense.
8 USC 1182, Section 212(a)(2)(A)(i)(II) of the INA, states that any foreign national who is convicted of or who admits to committing acts that violate any controlled substance law is inadmissible.
U.S. immigration law defines “conviction” as a formal judgment of guilt or, if the adjudication of guilt has been withheld, where (i) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.
“Restraint on liberty” includes imprisonment, a fine or restitution, and probation. It also includes minimal community-based sanctions such as work-release programs, rehabilitation programs, house arrest, revocation or suspension of a driver’s license, and community service. Whether a jail sentence is served or suspended is irrelevant.
A conviction is not necessary to make a foreign national ineligible for a visa or for entry to the U.S. if he admits to using controlled substances. But when there is no conviction, the admission must be “legally valid” to be barred from the U.S. due to a drug offense.
There are procedural standards for obtaining a legally valid admission.
For example, the current U.S. Department of State’s Foreign Affairs Manual provides these instructions to U.S. consular officers:
• Before the actual questioning, you must give the applicant an adequate definition of the crime, including all the essential elements. You must explain the definition to the applicant in terms they understand, making certain the explanation conforms carefully to the law of the jurisdiction where the offense is alleged to have been committed.
• You must give the applicant a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings must be recorded verbatim.
• The applicant must then admit all the factual elements which constituted the crime.
• The applicant’s admission of the crime must be explicit, unequivocal, and unqualified.
U.S. immigration agencies have discretionary authority to question Prince Harry – like any other applicant - about his drug use and procure a legally valid admission from him. This could occur if he applies for a new visa at the U.S. Embassy, in the event of a visa expiration or visa revocation. Or it could be whenever he seeks admission to the U.S. from the U.S. Customs following a trip abroad. Or it could be in a green card application for permanent residence, filed with USCIS.
If the U.S. immigration authorities are not looking for a reason to deny the visa or entry to the U.S., they may avoid such interrogation.
U.S. immigration officials typically ask for more details when there is some evidence of possible drug use. This could include an arrest record involving a drug offense. Or it could include a photograph of yourself in front of a marijuana dispensary or at a party surrounded by weed paraphernalia. Such a photograph could be found in your electronic devices by U.S. Customs, when you request entry to the U.S. Even though marijuana is legal in certain U.S. states and countries, in specific situations, it remains a controlled substance under U.S. federal law.
Section 102 of the Controlled Substances Act (21 U.S.C. 802) defines “controlled substance” as a drug or other substance, or immediate precursor, included in schedules I to V drug classification. Examples of Schedule I drugs are marijuana, heroin, LSD, Ecstasy, and magic mushrooms. Examples of Schedule II drugs are cocaine, meth, fentanyl, and opium.
Where the drug use occurred is relevant. For example, you may avoid the INA 212(a)(2)(A) bar even if you legally admit to medical use of marijuana in a foreign country, where this is allowed and no controlled substance law, in that country, was violated. But if you legally admit to medical use of marijuana in a certain U.S. state where this is allowed by state law, you would still be subject to INA 212(a)(2) inadmissibility under federal law. Whether a controlled substance is legal under a U.S. state law is not relevant to its illegality under U.S. federal law.
Prince Harry’s admissions to drug use in his memoir and in media interviews could cause him U.S. immigration problems, even if they do not make him inadmissible under INA 212(a)(2)(A). For example, a future visa request could go into indefinite administrative processing, where the applicant waits months, years, or forever for any decision. Or an O-1 visa may be denied under INA 214(b), due to failure to overcome the presumption of immigrant intent.
When there is no conviction, the U.S. immigration authorities must obtain a legally valid admission to committing essential elements of a specific drug offense. Otherwise, by law, they cannot apply the crime-related bar.
Prince Harry could stay silent if an officer tries to obtain a legally valid admission to drug use, at a green card interview or visa interview. This could indefinitely delay a decision in his case. Or he could provide an alternative explanation, which might be that he lied in his memoir and in media interviews, and never in fact used illicit drugs.
Perhaps the more likely scenario is that he will not be questioned further by the U.S. immigration authorities about drug use, due to political reasons and the discretionary authority of U.S. government officials.
If a person is found to have used fraud or willful misrepresentation of material fact to obtain U.S. immigration benefits, this is a permanent inadmissibility bar under INA 212(a)(6)(C)(i). The mere failure to volunteer information does not, by itself, amount to fraud or willful misrepresentation. But by admitting he used illicit drugs in his memoir and in the media, Prince Harry has raised questions on whether he lied in his visa applications or received special treatment from the U.S. government.
Tip #2 is to verify the applicant’s age at the time of the drug offense. The Foreign Affairs Manual states that if you were convicted of or admitted to committing the key elements of a minor drug offense related to simple possession or use of controlled substances, such a conviction or admission alone does not make you ineligible for a visa under INA 212(a)(2)(A)(i)(II), if the violation occurred when you were under age 18.
The USCIS’ Policy Manual also provides that, in general, a guilty verdict in juvenile court does not constitute a conviction for immigration purposes, although a conviction of a minor under age 18 will be considered a conviction for immigration purposes if the person was convicted as an adult.
In his book, Prince Harry claims he started using illicit drugs at age 17, and continued to do so after he turned 18. This includes his story in which he ate several black diamond mushroom chocolates at a party on actress Courtney Cox’s property. He says he had a “delightful trip” while taking psychedelic mushrooms.
Regular applicants must avoid making such publicly available admissions.
Tip #3 is to be aware of the separate, health-related inadmissibility bar related to drug use. A person is subject to being found inadmissible under INA 212(a)(1)(A)(iv) if he is deemed to be a drug abuser or drug addict.
A green card or immigrant visa applicant must complete a Form I-693, medical exam report. A U.S. civil surgeon or panel physician, who conducts the exam, provides remarks or attaches a report on whether the person has current substance-use disorders or substance-induced disorders of a controlled substance. A consular officer may also instruct a nonimmigrant visa applicant to undergo a medical exam to determine whether he is currently a drug abuser or drug addict.
Tip #4 is to confirm eligibility for a waiver if you are found inadmissible due to a controlled substance violation or due to your being identified as a drug abuser or addict.
While a motion to reconsider an inadmissibility bar is sometimes an option, this is a less common remedy.
There is the 212(d)(3) nonimmigrant waiver and the Form I-601 immigrant waiver. The applicant must not only qualify for the waiver, but also persuade the agency to grant the waiver as a matter of favorable discretion.
Section 212(d)(3) of the INA provides a waiver for nonimmigrants who are found inadmissible due to drug offenses or due to being identified as a current drug abuser or addict. The U.S. government considers the following factors, among others, when adjudicating these waiver requests:
(1) The recency and seriousness of the activity or conditions causing the applicant's ineligibility
(2) The reasons for the proposed travel to the United States
(3) The positive or negative effect, if any, of the planned travel on U.S. public interests
(4) Whether there is a single, isolated incident or a pattern of misconduct; and
(5) Evidence of reformation or rehabilitation.
Section 212(h) of the INA provides a waiver for immigrants who are found inadmissible for drug offenses in only one situation: that is, a single conviction or legal admission to committing one controlled substance offense that involves possession of marijuana, 30 grams or less. There is no immigrant waiver for possession of more than 30 grams of marijuana. No other drug offense, such as the use of cocaine and psychedelic mushrooms, may be waived in green card or immigrant visa applications. In addition, the Form I-601 applicant:
• Must have a qualifying relative (a U.S. citizen or permanent resident spouse, son, daughter, or parent) who will face “extreme hardship” if the applicant is not admitted to the U.S.
OR, alternatively,
• Must have only a single, 30-grams-or-less marijuana possession offense that occurred more than 15 years before the application for admission; demonstrate his admission to the U.S. as a permanent resident would not be contrary to national welfare, safety, or security; and show he has been rehabilitated.
There is no immigrant waiver if you are identified as a current drug abuser or addict and found inadmissible on health-related grounds. You may, however, overcome this inadmissibility if the drug abuse or addiction is found to be in remission. If, upon medical re-examination, the civil surgeon or panel physician certifies, per the HHS regulations and CDC’s Technical Instructions, that the applicant is in remission, the applicant is no longer inadmissible as a drug abuser or addict.
Although Prince Harry’s admission to drug use in his memoir and in various media interviews opens him up to further investigation, they do not amount to a legally valid admission to committing any controlled substance offense. Furthermore, if he is in the U.S. on an O-1 or other nonimmigrant visa, there is a 212(d)(3) waiver for both crime-related and health-related inadmissibility grounds.
On the other hand, if he gives a legally valid admission to multiple drug offenses, he will not be able to immigrate due to the strict eligibility standards for the Form I-601/INA 212(h) waiver. Temporary admission to the U.S. remains a possibility because the standards are more flexible.
Decision-makers have their own internal biases and external pressures. So, it’s difficult for them to be completely objective when deciding whether the positive factors outweigh the negatives.
If you found value in this content, hit the like, share and subscribe buttons. You can find more information at dyanwilliamslaw.com. There are also links to relevant articles and videos in the show notes. To request a consultation, you may contact me through my website or by email at info@dyanwilliamslaw.com.
This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies, which are subject to change. Do not consider it as legal advice for any individual case or situation. The sharing or receipt of this information does not create an attorney-client relationship.