Immigrants are caught between federal and state marijuana laws.
In recent years, the legalization of marijuana has been very popular and a vast majority of Americans embrace the idea. Recreational marijuana is now legal in 17 states, Washington, D.C., and Guam. Just a few days ago, Montana’s Senate passed a bill to legalize recreational marijuana, North Carolina lawmakers introduced legislation to legalize the possession and sale of marijuana, and Virginia became the first Southern state to legalize marijuana.
Also, with the support of about half of the Republicans and almost all the Democrats, the U.S. House of Representatives passed legislation last week that would allow banks to provide services to cannabis companies in states where it is legal. This is now another piece of legislation waiting to see the light of day in the U.S. Senate.
With all of that, the use and sale of marijuana or cannabis remain illegal under federal law. Recreational cannabis consumption at home is still a federal crime, regardless of whether it is legal in the state. The U.S. Drug Enforcement Agency (DEA) describes the manner in which it classifies narcotics and other plants and drugs. According to federal criminal law, Schedule I drugs are the most dangerous and addictive. And guess what? Marijuana is a Schedule I drug under federal law and some states’ laws.
The DEA states that:
“Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote.”
Unfortunately, many immigration benefit applicants don’t even realize that if they smoke pot, consume foods that contain marijuana, or even work in the cannabis industry, they are doing something illegal under federal law. For applicants living and working in states where marijuana is legal, possessing or selling marijuana can make them inadmissible, deportable, or ineligible for certain immigration benefits including obtaining a green card or establishing the good moral character required to become a citizen of the United States.
It’s been reported that in some jurisdictions that have legalized marijuana, Immigration Officers at some USCIS Field Offices are aggressively asking questions regarding marijuana during adjustment of status and citizenship interviews. It is therefore very important that applicants fully understand the implications of marijuana possession, medical or recreational use, and work in the cannabis industry before applying for any immigration benefits.
There are several ways in which USCIS can find out if someone has used marijuana.
The most straightforward is by asking, either through an application or during an interview, whether an immigrant has abused drugs or broken the law. Form I-485, (Application to Register Permanent Residence or Adjust Status), Part 8, question 30 asks:
“Have you EVER violated (or attempted or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?” Yes or No
For example, a green card applicant who is married to a citizen of the United States can be at risk of being deported if an Immigration Officer asks if he or she had ever used marijuana. If the applicant answers “yes” by making this admission, he or she can be found permanently inadmissible and can be deported. Also, depending on the circumstances, a Lawful Permanent Resident can even be deported.
Marijuana consumption may also be mentioned during the required medical examination for green card applicants. The doctor performing the examination (who is authorized by USCIS) can order a drug test for a variety of reasons including a history of substance abuse, physical or psychological signs of a drug problem, or even long gaps between schooling or employment. That may also be the case during an immigrant visa consular interview.
At the moment, this is a list of states and U.S. territories where recreational marijuana is legal:
- Alaska
- Arizona
- California
- Colorado
- Guam (licensing guidelines delayed due to COVID)
- Illinois
- Maine
- Massachusetts
- Michigan
- Montana
- Nevada
- New Jersey
- New York
- Oregon
- South Dakota
- Vermont (retailers will start receiving licenses in October 2022)
- Virginia
- Washington
- Washington, D.C. (has not yet established a regulatory agency for recreational cannabis)
If you live in a state or U.S. territory that has legalized marijuana, it is very important for you to know and understand how the use of marijuana or having a job in the cannabis industry can have negative immigration consequences for you.
If you are an immigrant or a noncitizen of the United States:
1. DO NOT bring with you, or travel with, any marijuana or a medical marijuana card;
2. Do NOT grow, traffic, distribute or sell marijuana;
3. DO NOT go to a medical examination if you know that traces of marijuana may be found in your system (better wait);
4. DO NOT share anything related to marijuana use, cultivation, consumption, and/or employment in social media and do not have any photos or videos related to marijuana on your phone;
5. AVOID any employment in the marijuana or cannabis industry;
6. CONSULT with an experienced Immigration Attorney in case you need medical marijuana.
Legal marijuana can certainly affect an immigrant’s ability to obtain a green card or become a citizen of the United States. We recommend that you speak with an experienced Immigration Attorney before filing an application, attend a medical examination appointment, or a USCIS or consular interview.
NOTE: This blog is shared for informational purposes only and should not be considered as legal advice. For specific answers regarding your case, we recommend that you speak with an experienced Immigration Attorney.
POSTED BY: Mara Montini