Under U.S. immigration law, any non-U.S. citizen who is convicted under the Controlled Substances Act, even green card holders, who participate or make investments in the marijuana industry or use marijuana where it is legal (even for medicinal purposes) may be subject to inadmissibility, be barred from returning to the United States or be prevented from naturalizing (for at least five years).
For example, a Russian national reportedly was denied a green card (although he has not been deported) for “aiding and abetting” in the trafficking of marijuana for “installing and maintaining a security camera system for a cannabis grower ….”
Marijuana is ever considered a Schedule I drug under the federal Controlled Substances Act. A conviction under the Controlled Substances Act can direct to severe consequences for a non-U.S. citizen.
Immigrants are getting caught between federal and state marijuana laws. Profound immigration impacts result in states where employees may be protected from employer sanctions based on marijuana use. Currently, 37 states (and the District of Columbia) have decriminalized marijuana or enacted laws approving its use for medical or recreational purposes. Besides, few states prohibit employers from penalizing employees for marijuana use outside of the workplace, and some states prohibit vocation intolerance against medical marijuana users.
As employers embrace guidelines in line with state laws, they should be detailed not to facilitate non-citizens to partake in activities that entangle marijuana and remind all employees that, while there may not be many nationwide prosecutions for individual use, the possession, sale, cultivation, and distribution of marijuana remains illegal under federal law and may have serious immigration consequences.
Variance between federal and local authorities rose under the Trump administration, which is less tolerant than its predecessor when it comes to both immigrants and local pot laws.
Drug use is not a new USCIS criteria—the agency has long used it to determine whether an immigrant has “good moral character” and deserves to stay in the US. But until now, denials related to legal pot have been mostly seen in Colorado and Washington, the two states that first legalized recreational marijuana, says Kathy Brady of the Immigrant Legal Resource Center (ILRC), a California nonprofit that advocates for immigrants’ rights.
Brady feared that the new policy bulletin will mean more marijuana-related denials as USCIS officers extend the practice to other states that have legalized the drug. She told Quartz the announcement is “part of the Trump administration’s plan to get rid of or block as many immigrants as they can.”
Congress is assessing legislation to decriminalize marijuana, i.e., the Marijuana Opportunity Reinvestment and Expungement (MORE) Act and the Cannabis Administration and Opportunity Act (CAOA). If the MORE Act or the CAOA is passed, it would eliminate the confusing conflicts that arise for foreign nationals between state and federal law. Either law would:
- Remove marijuana from Schedule I of the Controlled Substances Act;
- Expunge low-level federal marijuana convictions;
- Create new marijuana industry opportunities in states where the industry is legal; and
- Eliminate the threat of inadmissibility or deportation for foreign nationals participating in the legal marijuana industry.
Until marijuana is decriminalized at the federal level, foreign nationals must be wary. Only people who are already US citizens can use marijuana or work in the legal industry without any concern.
