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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, and inadmissibility.
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.