Hey everyone, Erik here again to talk immigration with you. I’m a former consular officer and a former USCIS officer, and I want to remind everyone that my opinions expressed here are purely my own and not designed to be legal advice! So with that being said, let’s jump right into an interesting story that has been developing in international news over the last couple weeks.
So I don’t usually comment on celebrity news, but where there is an immigration or visa aspect to it I often find myself shaking my head because the mainstream press often misunderstands or misreports a lot of important facts about visa issues in particular. You may have seen some recent stories about Prince Harry, specifically regarding his admission in his memoir about recent drug use and how that might affect his visa status. A few American organizations are attempting to use the Freedom of Information Act to obtain records of his visa application to determine whether he was candid about these activities on his visa application. Anyone who has applied for a U.S. visa knows there are several areas where the application asks for information on drug use, criminal activity, and substance abuse. One assumes that if those questions were answered as “yes” then you would be denied a visa, maybe permanently! So many people are wondering if this is going to be a serious issue for Harry or if it may cause him to lose his visa. Well, as always when it comes to immigration the explanation isn’t that simple.
There are three main areas of U.S. immigration law where drug use (not distribution or trafficking) can lead to a visa denial or finding of ineligibility. This also changes a bit depending on whether you are applying for an immigrant visa (to reside permanently in the U.S.), or a nonimmigrant visa (to visit the U.S. temporarily). In Harry’s case let’s assume he has a nonimmigrant visa, probably an O visa for “extraordinary talent.” That allows Harry to reside in the U.S. for three years and then is renewable every year after that. Let’s also remember that Harry probably applied for his visa and arrived in the U.S. before his book was published, so the admission did occur post-facto and it was unlikely he discussed it unprompted with a visa officer at the U.S. Embassy.
What types of issues might this admission cause for Harry in the future, though? Well let’s look at the law. As I mentioned before, there are three major grounds of ineligibility where illegal drug use might come into play. The first is what we call INA 212(A)(1), “health and medical grounds”, specifically (A)(1)(A)(IV), “Drug abuse or addiction”. This may seem like a problem for Harry potentially, but in the law it is pretty narrowly defined as an addiction or abuse scenario. Casual use or sporadic use in the past would not rise to the level of an ineligibility for most people. For the health-related grounds of ineligibility the consular officer isn’t going to make that determination, after all they aren’t doctors and don’t know the visa applicant’s medical history. For all of these grounds the consular officer would have sent the applicant to what they call a “panel physician”, who works with the consulate to conduct medical examinations. In most cases these are done for people who have multiple DUIs or other signs of alcohol abuse (which is a separate but related grounds of ineligibility), though I did once have an interesting case where we sent a visa applicant for an exam to prove he wasn’t an alcohol abuser and the results came back that he was using cocaine. He argued that was fine because we only sent him to check on the alcohol problem. Gotta give him points for trying!
Next up we have INA 212(A)(2), “criminal activity, criminal convictions, and related activities”. This is where most criminal activity lives in the Immigration and Nationality Act, and this is where most people who have criminal records run into trouble. So what about Harry? Well we don’t know what his criminal history is but I would imagine as a literal Prince he has been fairly insulated from routine law enforcement investigations throughout his life. Certainly in his memoir he doesn’t discuss any criminal penalties for his drug experimentation. Forgive me if that’s not correct, I haven’t read the thing. You see, for the (2)(A) series of ineligibilities, you generally need to have a conviction to apply them. No conviction, no problem in most cases.
Okay, let’s stop for a second. If there’s no conviction, why do these organizations think that Harry’s admission would pose a problem for him? Well, this is an important question. While the Foreign Affairs Manual, which is the policy and operational document the State Department uses to interpret the INA, does talk about “admission” as a possible avenue to apply the criminal ineligibility, in practice it’s much more specific than just having someone say “I did it” whenever or wherever. In the FAM it says the following: “A finding of INA 212(a)(2)(A)(i) ineligibility requires either a conviction or an “admission.” It is often difficult to obtain a legally valid “admission” for purposes of INA 212(a)(2)(A)(i).” It goes on to say that due to prior court decisions regarding this very question, there is an elaborate, almost formal, process to prepare the visa applicant for their “admission”, which includes explaining their rights, putting them under oath, and conducting the procedure in front of a U.S. official with full and complete explanation of the crime and all factual elements associated with the crime on the record. It’s almost like conducting a mini-court hearing at the consulate. In my ten years at the Department of State I recall doing this once, and only because admitting and then seeking a waiver for the crime was the only way the visa applicant could overcome a number of related issues that were going to render him permanently ineligible for a visa. Did this happen with Harry at the consulate? I’m guessing it did not. Therefore the U.S. immigration system would have a difficult time defending a decision to render Harry ineligible for criminal activity.
The last area of concern would be INA 212(A)(6) “illegal entry, misrepresentation, and other immigration violations”. There is a section for misrepresentation (or “fraud” in clearer terms) that says that anyone misrepresenting a material fact to procure a visa is ineligible. Whether or not this would apply to Harry is heavily dependent on what he was asked at his interview. While this ineligibility used to be fairly widespread for people who lied about things like their travel plans or employment at their visa interview, post-9/11 the information sharing and biometrics databases that the Department of State gained access to made it possible for them to have almost real-time security and identity verification. In other words, it became a lot harder to commit fraud. Currently this ineligibility is usually applied for things that happen post-interview that expose an important element that was hidden at interview, like if a person says they want to go to the U.S. for tourism then CBP catches them during entry with evidence they are planning to stay in the U.S. permanently. What the consular officer generally won’t do is play “gotcha” by asking you questions at the interview and then saying you lied. Can we say for sure that Harry wasn’t asked point-blank about drug use at his interview? No we can’t, but I think it’s highly unlikely. Therefore there isn’t much ground to stand on legally to say he committed fraud.
Final though, even if any of these grounds were applied to Harry, we have to remember that there is a waiver process for most of these ineligibilities, particularly for nonimmigrant visas. Would Harry qualify? Well, to receive a INA 212(d)(3) waiver for most of these grounds, they look at a couple things:
1) The recency and seriousness of the activity. Since this happened a far amount of time ago, and nobody seemed to be harmed by it, this probably wouldn’t be an issue.
2) The reasons for proposed travel to the United States. An O visa is designed to bring talented and skilled people to the U.S. Certainly something the U.S. would prioritize.
3) The positive or negative effect of the planned travel to the U.S. You might disagree, but most would say that having Prince Harry in the U.S. is a good thing for America for various reasons.
4) Whether the behavior is a pattern or an isolated event. Harry did say he had a pattern of experimentation, so there may be a slight issue on this point, but the sense I got was that this behavior was in the past for him.
5) Whether there is evidence of reformation or rehabilitation. As long as Harry isn’t waiving it around the public’s face that he is still doing this kind of thing I doubt there’s an issue here.
So if he needed a waiver he’d probably be a solid candidate for one. Those waivers are recommended by the consular officer and then approved by the Admissibility Review Office within CBP, so worst case scenario it might hold up his visa issuance for 4-6 months while that process plays out.
Whew, well that’s all I have to say about that. Harry is probably fine, and like everything that involves the royal family, what’s playing out in the press is mostly a sideshow designed to feed the appetite for gossip that seems to surround everything these people do. Glad to have an opportunity to share my perspective and hopefully this helps some of you out there who are wondering about your own situations and how this news story might relate. Thanks again for watching and don’t forget to Choose Boundless!