DISCLAIMER: Content in this article is for reference purposes and is not intended to substitute for advice given by legal counsel. Always seek the guidance of legal counsel with any questions you may have.
State and federal marijuana laws have been at odds for decades, but it wasn’t until recently that immigration policy guidelines have been strictly enforced. The Obama administration emboldened states' rights to operate a regulated cannabis market within its jurisdiction, but those state protections didn't last for long.
Under the Controlled Substances Act, cannabis is classified as a Schedule I illegal substance among the likes of heroin, LSD, ecstasy, and peyote. The current administration has a no tolerance policy on immigrants who have used marijuana in the past or are employed by a cannabis business despite recreational pot being fully legal in 11 states and decriminalized in 15 states.
U.S. Policy on Drug Use by Non-Citizens
According to a policy alert released on April 19, 2019 by the U.S. Citizenship and Immigration Services (USCIS), immigrants who use cannabis or who work in the marijuana industry can be denied U.S. citizenship, even if the act was committed in a state with legal cannabis laws.
Marijuana has been a federally controlled substance since 1970, but the wave of marijuana legalization has led to contradictory local and federal laws. Former Attorney General Jeff Sessions rescinded the Obama Administration's policy of non-interference with cannabis-friendly states.
USCIS Policy Guidance
USCIS's policy clarification states that "an applicant who is involved in certain marijuana-related activities may lack good moral character (GMC) if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws."
They go on by saying that "violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing GMC for naturalization even where the conduct would not be a violation of state law."
“Good Moral Character”
USCIS cites using marijuana or working in a legal marijuana industry as a conditional bar for establishing a good moral character for naturalization. This long-held policy was previously enforced in states with legal cannabis laws like Washington or Colorado. Immigrants applying for naturalization must establish GMC in the five preceding years before applying. GMC, however, can be highly subjective and vaguely defined.
The policy provides an updated exception for "a single offense of simple possession of 30 grams or less of marijuana." The exception also applies "to paraphernalia offenses involving controlled substances as long as the paraphernalia offense is 'related to' simple possession of 30 grams or less of marijuana."
How the U.S. Knows About Your Marijuana Use
USCIS has a multitude of ways of finding out if a naturalization applicant has used cannabis or has worked in the cannabis industry. Non-citizens can be asked about their marijuana use through an application or during a screening interview.
During naturalization and adjustment of status applications, the State Department may ask applicants if they have ever violated laws relating to controlled substances. Misrepresentation on immigration applications can lead to the applicant losing immigration benefits or getting banned from the U.S. for life. CBP, ICE, USCIS, and U.S. customs agents can ask non-citizens about their marijuana use or involvement.
Green-card applicants can also be subject to urine and blood screening during medical exams or at the doctor's discretion if they suspect an applicant has used illegal drugs based on behavior, history, and physical appearance.
Working with a cannabis-related company that distributes, grows, or sells cannabis can negatively affect a person's immigration status. Even individuals that work in ancillary businesses like accounting or security firms or individuals whose spouses work in those businesses can be viewed as aiding and abetting drug trafficking of a controlled substance by the government.
Social media posts by a non-citizen or even a close friend about selling or using marijuana can affect a person's immigration status. Agencies like the Immigrations and Customs Enforcement (ICE) are allegedly monitoring social media platforms through phones or laptops for marijuana use even without a warrant.
When crossing into the U.S., Customs and Border Protection (CBP) can check through a person's social media data through a warrantless search. CBP offers could detain a person and bar them from entry if they are found to be breaking federal law.
How Marijuana Policy is Affecting Immigrants
Someone who's caught with cannabis can lose their visa, green card, or asylum case. If a federal subsidiary deems an applicant inadmissible, the individual needs a temporary waiver from CBP to visit the U.S. Waivers can be expensive and involve a long and arduous process only to receive waivers valid between one and five years.
The issue of marijuana and immigration has come into the forefront with Canada's cannabis legalization. CBP issued a statement saying that Canadians working in the marijuana industry coming to the U.S. for reasons related to the marijuana industry can be denied entry or get lifetime bans. Cannabis industry workers coming to the U.S. for non-cannabis-related reasons will be admitted.
One case involves Canadian CEO of an agricultural equipment manufacturer Jay Evans and his coworkers who were banned for life from the U.S. for mentioning they would be designing machines for cannabis producers during the trip. Lying about a person's intentions for entering the U.S. can also lead to a conditional bar for entry.
Another case involves Oswaldo Barrientos who emigrated from El Salvador 29 years ago when he was a baby. He got his green card at 13 years old and applied for citizenship at 30. During the immigration interview, however, an immigration officer allegedly asked him about working at a dispensary. He worked at a dispensary in 2014 after his mom was diagnosed with stage 3 melanoma. He was later denied citizenship allegedly based on a lack of good moral character.
Non-citizens who have admitted to using marijuana or worked in the marijuana industry can risk being deported. Barrientos and others non-citizens like him have been warned to not travel internationally because they risk being detained when re-entering the U.S.
Education and Awareness
Nonprofit groups like the Immigrant Legal Resource Center (ILRC) have released warnings and educational videos to increase awareness about the effect of marijuana use on immigration status. USCIS's enforcement of policy guidelines has allegedly led to more cases of individuals being denied citizenship for their relation to cannabis.
Many immigration lawyers recommend not growing, possessing, using cannabis, or working for a cannabis-related business. Violation of federal control substance law can affect individuals applying for naturalization, travel, or change of status. Some advise immigrants to try the following to maintain immigration benefits:
- Avoid posting marijuana-related content on social media
- Seek an immigration lawyer to answer questions about marijuana or after admitting to marijuana use to an immigration officer
- Avoid using cannabis-related stickers and clothing
- Avoid talking with a CBP, ICE, or USCIS agent without legal representation
- Avoid discussing cannabis use or possession with the aforementioned agents, unless advised by a lawyer
Under the Trump administration, the Department of Homeland Security is paying more attention to the association between immigration and marijuana, and has adopted stricter enforcement for immigrants suspected of drug use. Despite Americans' growing acceptance of cannabis, the federal government continues to maintain an intolerant stance on marijuana use, possession, or growing cannabis. Immigrants continue to be disproportionately affected by federal guidelines on marijuana with no end in sight.