Waivers in Adjustment of Status Cases Marijuana




In the next few weeks, we will be covering the topic of waivers in the context of adjustment of status. Adjustment of status is the process by which an individual who has a temporary status (a B visa or an F visa, for example) or no status (has an expired visa) can adjust their status to that of a lawful permanent resident.

A lawful permanent residency card is commonly called a greencard. Typically, individuals want to file for adjustment of status after marrying a U.S. Citizen. There are other reasons why you might be able to file for adjustment of status, aside from marrying a U.S. Citizen, and each reason has a variety of requirements.
To see whether you qualify for a greencard, please contact our office.

For this line of posts we will be assuming you qualify for adjustment of status and we will be looking solely at waivers.

Waivers and Criminal Issues

One common reason for needing a waiver is having had a criminal issue in the past. A conviction for even a small amount of marijuana will require you to obtain a waiver.

Take the case of Mark (name changed to protect privacy), for example.(*) Mark’s parents brought him to the United States when he was a child, with a visitor visa. He was a good kid and after graduating from high school he took work under the table (his visitor visa had long expired and he did not have authorization to work) at a paper factory. One day, after work, Mark and a few of his friends went to a park to smoke a little bit of pot (marijuana). A passerby alerted police and Mark and his friends were arrested. On the advice of his public defender, Mark pled “no contest” to possession of marijuana. He never served jail time. He never got into any further trouble and in fact married his high school sweetheart (a U.S. Citizen) and started a family. Mark was very surprised to learn that he would need a waiver for having smoked a mere joint in order to obtain his greencard.

“No Contest”: a Conviction for Immigration

Mark needed a waiver because pleading “no contest” is considered a conviction for purposes of immigration. Although the immigration relief available to individuals with drug convictions is extremely limited, thankfully there is a waiver for possession of less than 30 grams of marijuana.
In order to obtain the approval of Mark’s waiver we had to prove that Mark had a “qualifying U.S. citizen or lawful permanent resident relative”. Such a relative includes a:

  • U.S. Citizen
  • lawful permanent resident
  • spouse
  • child
  • parent

Proving Extreme Hardship

Mark had two qualifying relatives, his wife and his newborn daughter. Additionally, we had to prove that Mark’s wife and/or daughter would experience extreme hardship if he was denied his waiver. We argued on Mark’s behalf that:

  1. Mark was the sole financial provider for his family
  2. Mark’s wife did not work
  3. If Mark’s wife were forced to reenter the workplace she would have no one to take care of their daughter
  4. Mark’s wife began seeing a therapist for her anxiety over Mark’s unstable immigration status
  5. Mark’s wife would not be able to accompany Mark back to his home country because she did not speak the language
  6. Mark’s wife had well controlled asthma but the air quality in Mark’s home country was poor and access to medical care was limited

Mark’s waiver was approved and he got his greencard. Today, Mark is a U.S. Citizen.

If you, like Mark, have a conviction for less than 30 grams of marijuana, or a different type of conviction, please contact our office to discuss whether you qualify for a greencard and whether you’d be a good candidate for a waiver.

(*) Examples are taken from actual cases worked on by a member of Ranchod Law Group.

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