Marijuana Legalization: A Legal Trap for Immigrants and Foreign Nationals
in the U.S.
California’s recently passed marijuana legalization referendum, Prop.
64, has set an immigration trap for foreign nationals in the U.S. Unfortunately,
federal drug policy has not kept pace with legal developments here in
California, where the voters are doing a massive rethink on the War on
Drugs. Because federal law remains stuck in the past, foreign nationals
who live and work in the U.S. must understand that using, possessing and
cultivating marijuana is still very much illegal under federal law, and
carries severe immigration consequences.
Federal Marijuana Law and Top Talent: Don't Get Burned
As thought leaders and cultural icons, business executives, artists, and
athletes have been at the forefront of marijuana reform. However, for
non-U.S. citizens, marijuana use poses significant risks to being able
to freely travel to and work in the United States.
Despite decriminalization efforts at the state level, federal immigration
law still imposes huge penalties against the use, possession, cultivation,
and distribution of marijuana. Attorney General Jeff Sessions, who oversees
drafting of U.S. immigration regulations as well as decisions at the federal
immigration courts, has been
outspoken in his opposition to state-level marijuana legalization. Taken together,
this spells immigration danger for non-citizens who use or grow marijuana.
Federal immigration law makes no exception for medical marijuana, and non-citizens
with medical marijuana (MMJ) cards are also at risk of immigration trouble.
Possession of an MMJ prescription card is overpowering evidence of past
and current marijuana use, which any immigration officer or medical examiner
may use to support a finding of visa ineligibility.
Immigration penalties for marijuana use can come up in a host of contexts.
For instance, a criminal conviction for using, cultivating, or possessing
(30 grams or more of) marijuana is a deportable offense, meaning possibly
losing the right to live, work or study in the United States. A marijuana
conviction, or admitting to the essential elements of a marijuana crime,
is generally also a ground of criminal inadmissibility, disqualifying
non-citizens from a green card or visa to the U.S.
Marijuana use isn’t just a criminal immigration issue, but also a
health-related ground of inadmissibility (as a "drug abuser").
To overcome a "drug abuser" finding, a non-citizen must go through
a lengthy clearance period followed by certification from an approved
physician. No conviction is necessary to fall in this trap: merely
confessing to past drug use, either at a green card or visa interview, at customs,
or at the visa medical exam, can lead to a finding of inadmissibility.
Not Cool: The U.S. Immigration System Profiles and Targets Possible Marijuana Users
With state-led marijuana reform gaining momentum, the U.S. visa system
is now geared toward identifying marijuana users. Immigration officers,
medical exam personnel, and consular officers are now intensively profiling
non-citizens – particularly from cannabis-legal states -- and closely
interrogating them about marijuana use.
Foreign executives, athletes, and artists are at particular risk of trouble.
A lack of familiarity with the harder edges of the criminal justice system
may mislead them into a false sense of security when dealing with law
enforcement officials and medical personnel who are specially trained
to lure unsuspecting foreign nationals into confessing to past marijuana
use. Lying about past marijuana use is likewise problematic, as intentional
misrepresentations can bring down charges of immigration fraud, visa cancellation,
Leading Companies and Cultural Institutions Need to Mitigate the Legal
Risk of Marijuana Reform to Foreign National Talent Now
For America’s leading companies and cultural institutions, the state-led
marijuana legalization movement, and the federal government’s failure
to keep up, has created enormous legal risk for organization's that
must attract and keep the world’s best talent.
What can organizations do to protect themselves? First, get ahead of the
problem. Work with a law firm focusing on immigration defense to develop
policies and programs to help mitigate this risk and ensure your global
workforce is informed and protected. For those foreign nationals who are
already in trouble, get to work immediately with a law firm with an established
track record on criminal immigration matters. Applying for a non-immigrant
waiver of inadmissibility, confronting "drug abuse" or conviction
determinations, and even post-conviction relief, are possible solutions
to consider when your top talent is facing visa ineligibility or deportation
from the U.S.