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Do I Need a Waiver of Inadmissibility if I was Convicted of One Offence for Possession of Marijuana Under 30 Grams?

Possession of Marijuana Under 30 Grams

If you were found in possession of marijuana under 30 grams, you will need a Waiver of Inadmissibility to gain legal entry to the United States (there are only a few exceptions which are described later).  The confusion arises because there is incomplete information on the internet which gives people the false impression that they do not need a Waiver if:

  • They were found in possession of less than 30 grams of marijuana due to a petty offence rule.  The petty offence rule, as you will soon learn, does not mean you do not need a waiver; it simply means that you qualify to apply for waiver (as it related to an immigrant application) ONLY if you possessed under 30 grams of marijuana for a single offence.
  • Or, they confuse it with the exception rule which applies to non-immigrants which states your inadmissibility will be ignored if you have only one summary offence.  But, this rule does not apply to drug offences or felony violence.  Often, summary violence offences in Canada equate to felony offences in the United States and therefore are treated as such.

Specifically, people often confuse the following:

  • I-192 Non-Immigrant Waiver (exception rule) vs I-601 Immigrant Waiver (petty offence rule)

The exception rule applies to non-immigrants and the petty offence rule applies immigrants.  In either case, you must submit a Waiver of Inadmissibility. The I-192 Non-Immigrant waiver is granted on a temporary basis. The I-601 Immigrant waiver is granted permanently unless conditions are imposed.  Other ‘exceptions’ are also described.

Exception Rule – Non-Immigrant

If you wish to enter the United States as a non-immigrant (ie. visitor) and you were convicted of an excludable offence, you will need an I-192 Waiver of Inadmissibility for Non-Immigrant for legal entry, unless the exception rule applies.  The exception rule basically states that in some cases, if you have only one excludable summary offence, you might not need a Waiver–meaning your inadmissibility will be ignored. This exception rule under (2)(A)(ii) states that:

Inadmissibility and Exception Clause

Inadmissibility and Exception Clause

If you look above, the exception rule ONLY applies to (i)(I) Crimes Involving Moral Turpitude (ie. crimes of dishonesty).  It does not apply to (i)(II) pertaining to drug offences, nor does it apply for felony violence which is described elsewhere.  If you intend to enter the United States as a visitor (non-immigrant), you are inadmissible and will need a Waiver of Inadmissibility for Non-Immigrant to enter if you have a drug offence, regardless of quantity.  A Waiver of Inadmissibility for Non-Immigrant is only granted for a temporary period of up to 5 years.  The good news is there are no restrictions on applying for a Waiver of Inadmissibility for non-immigrant, meaning you are NOT banned from applying for an I-192 Waiver of Inadmissibility if you have a drug conviction, regardless of seriousness or quantity or type of drug.  However, the decision to grant a Waiver is based upon 3 criteria outlined in the Hranka case (meaning you are not prevented from applying for an I-192 Waiver, but you still must meet the 3 criteria or be sufficiently strong in most of the criteria).  There are also other exceptions to inadmissibility.

Non-Excludable Drug Offences

I often have individuals who are caught at the border with drug paraphernalia (ie. pipe or rolling papers) with marijuana residue or one joint, both of which would equate to less than 30 grams of marijuana. Or, they admit to drug use. Yet, they are always denied entry to the U.S. and only subsequently permitted legal entry once in possession of a U.S. Waiver of Inadmissibility.  There may be exceptions to inadmissibility and laws change all the time.  You can always plead your case.  I have had the following experience with drugs and inadmissibility:

  • I once had a client whose drug conviction was handled as a civil matter in the United States. DHS (previously called INS) responded in writing stating that they were not inadmissible.  I came across this situation early on in my career and did not keep documentation proving this fact–but I vaguely recall they had immigrant status in the United States at the time of offence and therefore, it did not render them inadmissible due to their immigrant status, even though they abandoned (gave up) their immigrant status at a later date.  They were found not inadmissible due to the petty offence exception below. But, they still had to submit a Waiver Application in order to get this ruling.  Once a person has a drug conviction, most border guards will refuse to grant admissibility, leaving it up to authorities to make that decision via Waiver application.
  • I once had a client that confessed to consuming narcotics at a U.S. Port of Entry and as a result was denied entry.  An Application for Waiver was submitted and DHS responding stating they were not inadmissible.  I remember the explanation as to why they did not need a Waiver to be vague. So, it would be difficult to quote laws in this case.  Not all clients are lucky in this regard as not all officers at DHS decide in the same way despite being subject to same laws.  In a case like this, an application is made, but if the outcome is unsatisfactory, retaining a U.S. lawyer to fight your case may be necessary and worth pursuing.  Even the best lawyers have to fight their case when the initial decision is not satisfactory.  There is a certain amount of subjectivity which cannot always be controlled by the person assisting you with your application as laws regarding inadmissibility are always complex.  No Waiver Specialist or U.S. Immigration Lawyer can guarantee a specific outcome.
  • Committing a non-felony drug offence prior to your 18th birthday does not render you inadmissible (this also applies to situations where you committed the offence prior to your 18th birthday but was not convicted until on or after your 18th birthday).

Petty Offence Rule – Immigrant – Ban on Possession of Marijuana Under 30 Grams

Does the Petty Offence Rule apply to Possession of Marijuana under 30 grams?

My research has revealed the following  Interim Decision 3661 (25 I&N Dec. 118 (BIA 2009)) in Matter of Lael Martinez Espinoza (File A073 829 192), which  states the following:

  1. An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia.
  2. An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.

    Possession of Marijuana Under 30 Grams

    Ban on Possession of Marijuana Under 30 Grams

Section 212(h) appears only to apply to people who are applying for immigrant status or have immigrant status.  For example, I help Canadians with an I-192 for Waiver of Inadmissibility for Non-Immigrant.  They are ONLY applying to go to the United States as a non-immigrant or visitor.   Form I-601 Waiver of Inadmissibility is for Immigrant Status or people immigrating to the United States.  Also, Landed Permanent Residents of the U.S. who face deportation due to criminality can apply for a waiver under 212(h), and if approved, they overcome their inadmissibility permanently.  I found the following paragraph on the internet which often surprises most people:

Based upon the information provided, it sounds as though you are seeking to immigrate to the U.S. permanently based upon a marriage to a U.S. citizen.  If this is the case, then a Form I-192 waiver will not do you any good.  In addition to the required documentation for the immigrant visa application process, you will also require an immigrant waiver of inadmissibility (Form I-601).  This immigrant waiver is limited in cases involving controlled substances – only individuals who have only one conviction, which involved less than 30 grams of marijuana, are eligible to apply for this waiver.  Thus, if you were convicted of an offense involving any other controlled substance or of an offense involving more than 30 grams of marijuana, there is no immigrant waiver available.

This means that individuals who possess more than 30 grams of marijuana NEVER qualify to immigrate to the U.S. under I-601. But, they can still apply for an I-192 Waiver of Inadmissibility provided their stay in the United States is only for a temporary purpose (ie. as a vistor).  Under the petty offence rule, you can apply for and receive a Waiver of Inadmissibility under 212(h) as an immigrant (ie. you still need a waiver), and if approved, you overcome your inadmissibility permanently (or subject to conditions), but it will only be approved if you possessed less than 30 grams of marijuana and you meet all other requirements to immigrate to the United States.

CAUTION:  if your I-601 Waiver of Inadmissibility for Immigrant Application is denied, you may subsequently have a hard time getting an I-192 Waiver of Inadmissibility for Non-Immigrant if you are unable to convince the U.S. your subsequent trips to the United States are only for a temporary purpose.

I-192 Non-Immigrant Waiver vs I-601 Immigrant Waiver

1.  I-192 Non-Immigrant Waiver

  • granted for a period of up to 5 years
  • you can apply regardless of quantity or type of drug

2. I-601 Immigrant Waiver

  • granted permanently, sometimes subject to conditions
  • you cannot apply if you possessed more than 30 grams of marijuana

NOTE:  some U.S. lawyers think everyone is banned entry PERMANENTLY to the United States if they possess more than 30 grams of marijuana.  This is mostly false.   Yes, they are permanently inadmissible.  But, they still qualify to apply for a Temporary I-192 Waiver of Inadmissibility for Non-Immigrant.  As long as U.S. authorities believe the applicant only intends to enter the U.S. for a temporary basis, they have rehabilitated, and their reasons for going to the U.S. are compelling given the seriousness of any conviction, the application is likely to be approved.

Not Qualified to Give Legal Advice

As I am not a ‘lawyer practicing in the United States”, I am also NOT qualified to give legal advice on this matter.  I must stress that the same applies to all paralegal companies providing waiver services in Canada. I can only share with you my 25+ years of experience as a U.S. Waiver Specialist (I have processed over 1000 applications) and my research found in this blog.  One other thing:  though simple possession of marijuana may not be a crime in many US States, possession of marijuana is still a Federal Offence and Federal laws apply to non-immigrant matters.

Legal Opinion Sought in the United States –

Though not considered ‘legal advice’, I also posted the following question at  “Does a Canadian need an I-192 Waiver of Inadmissibility for Possession of Less than 30 Mgs of Marijuana?”  This was the answer that I received:

Hello friend. My name is Ely, and welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my reply.

I am sorry for your situation.

According to INA § 212(a)(2)(A)(i)(II) and 8 USC 1182(a)(2)(A)(i)(II), a non-citizen with a drug conviction is generally inadmissible (Canadian or not). Despite common belief, there is no exception for 30 grams or less of marijuana, but, a person with a single conviction of 30 grams (or less) marijuana possession may file an I-192 to get a waiver.

So yes, the Canadian citizen in such a case would then need to file an I-192 prior to attempting entry, and getting a positive reply.

Generally speaking, individuals with no priors and only one simple convictions are approved.

As a result, it would appear that my opinion concurs with the opinion of a Counselor at Law practicing immigration law in the United States.