The Intersection of Immigration and Marijuana

Under Federal Law, marijuana is considered to be a controlled substance and admission of even casual and legal use of marijuana can trigger admissibility issues for foreign nationals. Immigration law provides Criminal Grounds of Inadmissibility, Trafficking-related Grounds of inadmissibility and even Medical related grounds of inadmissibility.

Criminal Grounds of Inadmissibility

An alien who has been convicted of or who admits to having committed a violation of any federal or state law or the law of a foreign country relating to a controlled substance is inadmissible to the U.S.  This means that a person who admits to using medical marijuana in a state that allows medical or recreational use can be denied admission to the U.S. because it is a controlled substance under Federal law.  

Trafficking-related Grounds of Inadmissibility

An alien who the consular officer or Attorney  General knows or has reason to believe is, or has been, an illicit trafficker in any controlled substance or is, or has been a knowing aider, abettor, assister, conspirator or colluder with others in the illicit trafficking in any controlled substance is inadmissible to the U.S.

This sounds like they are going after serious bad guys trafficking dangerous drugs. They are and should be. Very few people would disagree with this but consider how it might play out when there is so much disparity between the Federal Law, State law and the law of other countries.  This provision could be and has been applied to investors, officers, directors or employees of legal marijuana businesses. It may also be applied to tourists visiting marijuana dispensaries which are legal under state law.

The Times of Israel reported in February of last year on an Israeli cannabis agronomist who was sent by his employer (Tikkun Olan Ltd.) to consult with American companies in U.S. states where medical marijuana is legal. He meet and married an American Jewish Woman who petitioned for U.S. resident status(green card) for him. He was told by  U.S. immigration officials to withdraw his application for residency and leave that very day or be arrested on felony charges of illicit drug trafficking. He was given two hours to pack and say goodbye to his wife. A USCIS spokesperson was asked about this case and quoted as sayingWhile many states have changed their laws to make the sale and possession of marijuana legal under certain circumstances, immigration law requires the agency to apply federal law in adjudicating these cases. … [A]s a federal agency, we are legally unable to make special considerations in these cases unless or until federal law is changed.

CBP (Customs and Border Patrol) issued a statement on Canada’s legalization of Marijuana and Crossing the Border on 10/9/2018 which statement said “ A Canadian citizen working in or facilitating the proliferation of legal marijuana industry in Canada coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. However, if a traveler is found to be coming to  the U.S. for a reason related to the marijuana industry, they may be deemed inadmissible.  

Medical-  Related Grounds of Inadmissibility

U.S. immigration law may also deny entry to a foreign nation who admits using marijuana on “medical-related” grounds of inadmissibility under two provision of the immigration law. One of these two provides makes inadmissible any foreign person who is found to have or previously had a physical or mental disorder and associated harmful behavior that may pose a threat to the property, safety, or welfare of the foreign national or others.  Another provision deems drug abusers and addicts inadmissible

Drug Testing is not routinely used to determine drug use for non-immigrants but may be used if drug use is suspected – or the applicant admits to smoking pot on occasion in a jurisdiction where it is legal.

These medical-related grounds of inadmissibility create many questions of interpretation –  What is addiction? Is marijuana addictive? What is drug abuse? While admission to a single use of marijuana may not constitute abuse, use on more than one occasion may cause the immigration doctor to issue a finding of abuse. I am aware of several cases in which casual marijuana use was admitted and the persons were denied entry, subjected to random drug screenings and then allowed entry to the U.S. after six or twelve months of testing. This can seriously disrupt your life if you are a student or working temporarily in the U.S.

It is impossible to comprehensively cover the conflict between U.S. federal, state and foreign law on marijuana use in an article such as this. However, until the conflicts are resolved, there will continue to be inconsistent determinations. A doctor in Canada may not find addiction or abuse while a doctor in Mexico may find addiction or abuse with the same fact pattern.  

A Partial Fix is Possible and pending in Congress

Numerous bills have been filed in the House of Representatives and the U.S. Senate. These include

HR 420 – Regulate Marijuana Like Alcohol Act  (there is a companion bill in the Senate)

This would remove cannabis from the federal controlled substances act. This would eliminate the Criminal and Trafficking-related grounds of inadmissibility which would be a significant step forward in resolving the conflict between the immigration law and the state laws that allow for medical or recreational use of marijuana.

Marijuana Justice Act of 2019  –This was just reintroduced in the Senate and a companion bill will soon be filed in the House.

These bills would remove cannabis from the federal controlled substances act and would go further to expunge the federal records of those who were convicted of minor marijuana crimes and   would also apply to those currently serving time

According to a Boston Globe report on 2-28-19 , All 12 official Democratic candidates, as well as the potential Republican hopeful and former Massachusetts governor Bill Weld, told the Globe they now support full nationwide legalization, Canada-style. President Trump, meanwhile, has said he supports states’ rights to legalize.

If you support these or any of the other provisions related to marijuana legalization or decriminalization, you can reach out and let your voice be known on this or any other issue by going to https://www.commoncause.org/find-your-representative . This site also provides a list of committees each representative is a member of, bills sponsored by that representative and the top contributors to that representative.

Written by Linda M Kaplan

Linda M Kaplan

The Law Office of Linda M Kaplan, P.A. is a Miami-based immigration law firm serving both businesses and individual clients throughout the state of Florida, the United States, and numerous other countries around the world. We provide a uniquely personalized approach, offering precise legal guidance, unyielding advocacy, and a wide variety of innovative immigration and naturalization-related services to suit the various needs of all our clients. We have substantial experience and specialized knowledge in business immigration cases as well as family-based immigration and naturalization.