INA 212(a)(2)(A)(i)(II) · Criminal inadmissibility
An arrest is not necessarily a conviction, state legalization does not resolve federal immigration law, and the ordinary immigrant waiver is extremely narrow. Understand the real exceptions and available options.
Usually not. INA 212(h) authorizes ordinary immigrant relief for this drug ground only insofar as the case concerns one offense of simple possession of 30 grams or less of marijuana. That narrow threshold does not itself grant the waiver; the applicant must also meet a qualifying INA 212(h) route and win favorable discretion.
Temporary visas follow different rules. For otherwise eligible nonimmigrants, INA 212(d)(3)(A) may allow discretionary relief for this ground. If the conviction or admission does not legally meet the federal controlled-substance requirements, a waiver may be unnecessary.
01 / ACTUAL STATUTORY LANGUAGE
The verbatim text below includes the introductory clause, clause (I) and controlled-substance clause (II), without hiding the grammatical context.
Read the official United States Code ↗Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
is inadmissible.
02 / EVALUATE THE CRIMINAL GROUND
Begin with the statute, the actual disposition, the federal definition of a controlled substance and the immigration-law admission rules.
03 / THE 30-GRAM RULE
The single-offense limit is contained in INA 212(h). It does not erase the inadmissibility finding itself.
Read INA 212(h) in full ↗The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if—
LEGAL REVIEW / BEFORE A WAIVER
An inadmissibility finding is not necessarily the final word. Depending on the agency and circumstances, an incorrect determination may be challenged or reconsidered. The availability of review is case-specific; there is no universal appeal procedure.
Not every drug-related charge, state-law violation, or court disposition satisfies the federal controlled-substance inadmissibility provision. The legal elements, substance identification, and nature of any conviction or admission matter.
The appropriate legal response depends on the actual record and should be assessed before assuming the narrow INA 212(h) waiver is necessary.
Challenging a finding is different from requesting a waiver. Our firm evaluates whether the determination is legally sound and what relief may realistically be available.
Discuss an inadmissibility finding with our immigration firm →
04 / IMMIGRANT VISA & I-485
A 30-gram marijuana offense is not automatically forgiven. It permits consideration of relief only after the full INA 212(h) requirements are met.
Demonstrate that the ground concerns a single qualifying offense of simple possession of 30 grams or less of marijuana. The broader INA 212(h) 15-year and hardship provisions cannot waive cocaine, methamphetamine or other drug violations outside that threshold.
Over 15 years: the relevant conduct occurred more than 15 years before the application; entry would not be contrary to national welfare, safety or security; and the applicant demonstrates rehabilitation.
Qualifying-relative extreme hardship: an eligible immigrant relationship and extreme hardship to a US citizen or LPR spouse, parent, son or daughter under INA 212(h)(1)(B).
VAWA self-petitioner: a separate eligibility route under INA 212(h)(1)(C).
Generally file Form I-601 when applicable to the particular immigrant visa or adjustment process. Include complete certified records, credible evidence of the single marijuana offense and quantity, statutory-route evidence, and discretionary equities. Particular permanent residents can face aggravated felony or lawful residence restrictions. 8 CFR 212.7(d) imposes heightened discretion for violent or dangerous crimes.
INA 212(h) is not available to waive a controlled-substance ground based on an offense outside the single qualifying small-quantity simple-possession marijuana limitation. It is likewise unavailable to someone who fails the applicable statutory eligibility routes or is subject to a specific bar. Other humanitarian categories can have separate waiver authority, but that does not expand ordinary INA 212(h).
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if—
(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that—
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
Additional rules: some applicants previously admitted as LPRs face specific aggravated felony and seven-year lawful residence restrictions, with questions regarding admission versus adjustment depending on governing circuit law. Review all independent grounds before choosing a waiver.
05 / NONIMMIGRANT WAIVER
Eligible temporary visa travelers may seek a separate discretionary waiver even where an ordinary immigrant waiver is unavailable.
Otherwise qualify for the temporary visa category, meet the criteria for a recommendable waiver, and avoid a separate disqualifying refusal such as INA 214(b). No general US citizen/LPR qualifying relative, extreme hardship showing, or minimum lapse of time is required.
In ordinary consular B-1/B-2, F-1, H-1B and similar cases, document the full criminal history and rehabilitation, request consular consideration and obtain a favorable waiver recommendation, then await DHS/CBP authorization. Form I-192 is used in certain direct DHS/CBP processes, not as the routine replacement for a consular recommendation.
Consular and DHS reviewers weigh the seriousness and recency of the violation, rehabilitation, purpose of travel, and potential effects on US interests. Approval may be restricted by validity dates or conditions.
It cannot overcome an independent INA 214(b) refusal, an unwaivable excluded statutory ground, or failure to qualify for the underlying NIV classification. A consular officer may also decline to recommend a waiver. This controlled-substance ground itself is waivable for an eligible nonimmigrant, but approval is not guaranteed.
Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General.
The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.
Primary guidance: 9 FAM 305.3-4(A), controlled substance NIV waiver · 9 FAM 305.4, process and discretion · Nonimmigrant waiver guide.
Applicant A has one immigration-law conviction for simple possession of 10 grams of marijuana. That conduct may satisfy the initial drug-specific threshold for INA 212(h), but the applicant must still establish one of the statute's other eligibility routes and receive favorable discretion.
Applicant B has one conviction for cocaine possession. A lengthy rehabilitation history or serious family hardship cannot make that offense eligible for the ordinary INA 212(h) controlled-substance waiver. The right first step is to examine whether the criminal statute and conviction actually establish the federal controlled-substance ground; special humanitarian and nonimmigrant routes require their own separate analysis.
06 / PRACTICAL QUESTIONS
All eight original FAQ questions are preserved, with sixteen additional answers about the narrow immigrant waiver, federal drug definition, and nonimmigrant relief.
INA 212(a)(2)(A)(i)(II) makes a person inadmissible for a qualifying conviction or legally sufficient admission involving a violation, attempt, or conspiracy relating to a substance controlled under federal law. An arrest, police allegation, or unproved charge alone is not a conviction.
A criminal charge alone is not a conviction. Review the final disposition under INA 101(a)(48)(A) and any legally valid admission of the offense. Certain withheld adjudications and diversion dispositions can count as convictions if immigration-law requirements are met.
No. Federal immigration law uses the Controlled Substances Act definition. State legalization, decriminalization, or a medical marijuana authorization does not automatically remove a qualifying controlled-substance violation.
INA 212(h) permits a possible discretionary immigrant waiver only insofar as this ground concerns a single offense of simple possession of 30 grams or less of marijuana. This is a waiver eligibility limit, not a blanket exception to the inadmissibility ground; additional INA 212(h) tests and discretion apply.
It can be. Under Mellouli v. Lynch and later interpretations, the required connection to a substance defined in the federal Controlled Substances Act is critical. Certain paraphernalia conduct related to a single small-quantity simple-possession marijuana offense may qualify for INA 212(h), but this requires careful circumstances-based waiver analysis.
Sometimes. INA 101(a)(48)(A) may treat a plea, finding of guilt, or sufficient admission plus ordered punishment, penalty, or restraint as a conviction even if state law withholds adjudication. Review the precise disposition and program terms.
Not necessarily. Many rehabilitative expungements and record sealings leave an immigration-law conviction in place. An order vacating a conviction for a substantive or procedural defect may be treated differently; do not rely on the state-law label alone.
For ordinary immigrants and I-485 applicants, INA 212(h) is generally available only when this ground arises from a single offense of simple possession of 30 grams or less of marijuana, and additional eligibility and discretionary requirements are met. For eligible nonimmigrants, a separate INA 212(d)(3)(A) waiver may be available. Most other controlled-substance violations have no ordinary INA 212(h) immigrant waiver.
No. INA 212(a)(2)(A)(ii) expressly excepts only the CIMT clause, INA 212(a)(2)(A)(i)(I). It does not except the controlled-substance clause (II).
The controlled substance must come within the federal Controlled Substances Act definition at 21 USC 802. State laws covering additional substances may create a categorical mismatch. The criminal statute, divisibility, and record of conviction determine whether the federal ground is established.
A legally valid admission to committing the essential elements of a qualifying controlled-substance offense can establish inadmissibility even without a conviction. A casual comment or admissions without required legal safeguards does not automatically suffice.
Generally no under INA 212(h). The controlled-substance portion of that waiver is restricted to a single offense of simple possession of 30 grams or less of marijuana. An applicant may challenge the legal finding or identify a separately authorized humanitarian waiver, but cannot use general hardship to broaden INA 212(h).
First establish the violation relates to only one qualifying simple-possession marijuana offense of 30 grams or less. Then meet at least one statutory INA 212(h)(1) eligibility route: more than 15 years with rehabilitation and public welfare findings, extreme hardship to a qualifying US citizen or LPR family member, or qualifying VAWA self-petitioner status. Favorable discretion is also required.
No. INA 212(h)(1)(B) imposes a qualifying-relative extreme-hardship requirement, but a person meeting the 15-year rehabilitation route or the VAWA route may qualify without that particular statutory hardship showing.
No. For this specific ground the violation still must first fit the single offense of simple possession of 30 grams or less of marijuana limitation. The passage of 15 years does not turn cocaine, methamphetamine, trafficking, or another drug offense into an eligible INA 212(h) controlled-substance waiver.
Yes. Statutory aggravated-felony and seven-year residence restrictions apply to specified persons previously admitted as lawful permanent residents. The initial admission versus adjustment distinction can depend on controlling circuit law. Other statutory adjustment restrictions can also apply.
Yes, if otherwise eligible. The 9 FAM confirms that INA 212(d)(3)(A) may waive this ground for nonimmigrants, with a favorable consular or State Department recommendation and DHS approval. Review seriousness, recency, rehabilitation, travel purpose, and public interest.
No general family-relationship or extreme-hardship threshold applies to the ordinary INA 212(d)(3)(A) waiver. It remains discretionary and cannot cure an independent INA 214(b) nonimmigrant refusal.
Generally no. Ordinary consular nonimmigrant cases normally use a consular recommendation referred to DHS/CBP for authorization. Form I-192 is used in certain direct DHS/CBP situations, not as a routine replacement for the consular process.
INA 212(a)(1)(A)(iv) is a different medical ground. The proper approach depends on the medical classification, remission, and whether a separate controlled-substance criminal ground is also established. A waiver granted for one ground does not necessarily resolve the other.
No. A separate trafficking reason-to-believe finding under INA 212(a)(2)(C) is distinct from possession and may exist without a conviction. INA 212(h) does not waive that trafficking ground; an eligible nonimmigrant may have separate INA 212(d)(3)(A) options.
Some humanitarian categories have separate waiver authorities and statutory exclusions. Refugee or asylee adjustment may involve INA 209(c), U classification INA 212(d)(14), and T classification INA 212(d)(13). Eligibility and excluded grounds differ; these are not general INA 212(h) waivers.
Collect the precise criminal statute and version, certified complaint or charging document, disposition, plea transcript, judgment, sentence, laboratory or substance identification records when legally relevant, and USCIS or consular findings. Evaluate what each record may legitimately establish under the categorical and admission standards.
Identify the exact cited subsection and whether the agency relies on a conviction or admission. Review the federal substance connection and disposition before exploring any waiver. For immigrant relief, confirm the strict single marijuana simple-possession limit before preparing Form I-601.
07 / PRIMARY SOURCES
Use the actual criminal statute and federal controlled-substance definition. Court records and immigration process determine the correct application.
THE MESSERSMITH LAW FIRM, P.A.
We assess the criminal statute and conviction record, federal controlled substance definitions, the strict INA 212(h) marijuana limitation, and separate nonimmigrant waiver options.
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INA 212(a)(2)(A)(i)(II)
The immigrant and nonimmigrant rules are different. No waiver is automatic, and a separate inadmissibility finding needs separate analysis.