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Thirty-three US states, The District of Columbia, and at least 26 countries around the world have legalized the production and use of cannabis for medical, and, in some jurisdictions, for recreational use. This wave of legalization has led to a growing and dynamic industry that employs thousands of individuals and has reduced the levels of criminalization of marijuana-related crimes. Despite this changing landscape however, United States Citizenship and Immigration (USCIS) has recently made it clear that virtually any involvement with cannabis, even in jurisdictions where it is now legal, can have serious negative consequences to becoming a United States citizen.
In an April 19 USCIS policy alert, USCIS indicated that it was issuing policy guidance confirming that cannabis-related activity, even when it occurs in a jurisdiction where the activity is legal, creates a conditional bar to demonstrating good moral character for the purposes of naturalization. While USCIS has long treated cannabis-related activity as a basis for withholding immigration benefits, this new pronouncement further highlights the complex and uncertain interaction between state and federal laws, and United States immigration law.
According to the USCIS policy, “marijuana remains illegal under federal law as a Schedule I controlled substance regardless of any actions to decriminalize its possession, use, or sale at the state and local level,” a USCIS spokesperson said in a statement. “Federal law does not recognize the decriminalization of marijuana for any purpose, even in places where state or local law does.”
”WHAT IS “CANNABIS-RELATED ACTIVITY”?
Prohibited cannabis-related activity includes possession, prior use, as well as employment or investment in cannabis industry, each of which is deemed a violation of the federal Controlled Substances Act (CSA).
WHAT IS “NATURALIZATION”?
Department of Homeland Security | DHS.gov
Naturalization is the process by which a Permanent Resident (Green Card holder) applies for and ultimately becomes, a United States citizen. Permanent residents can apply for naturalization after five years in permanent resident status, or three years if the permanent resident status is based on marriage to a United States citizen. While there are multiple prerequisites that must be met to naturalize, including physical presence, applicants must also demonstrate that they have “good moral character.”
WHAT IS “GOOD MORAL CHARACTER”?
USCIS defines good moral character as “character that measures up to the standards of average citizens of the community in which the applicant resides.” In practice, this means that an applicant for naturalization has not been involved in certain actions that USCIS deems as indicative of lacking good moral character, including: murder, fraud, crimes of moral turpitude, and even involvement in cannabis-related activity. Cannabis-related activity is unique however, because even though it has been legalized at the state level (or national level with respect to Canada), USCIS still views it as an activity showing a lack of moral character because it is illegal under federal law.
HOW DOES CANNABIS-RELATED ACTIVITY CREATE A “CONDITIONAL BAR”?
Activities that USCIS views as breaches of good moral character create bars to the ability to naturalize. Some activities, such as murder, can create full, permanent bars that make naturalization virtually impossible. Other activities, such as cannabis-related activities, “create conditional bars,” which means that they may be overcome in some circumstances. To overcome a conditional bar, the applicant must be able to demonstrate that extenuating circumstances existed, either before the act, or at the time of the act. Furthermore, the USCIS Policy Manual instructs officers handling naturalization cases to disregard any evidence of an applicant’s reform and to avoid taking into account positive character factors. Therefore, it can be almost impossible for an applicant to overcome a conditional bar when they intentionally and knowingly involve themselves in the cannabis industry.
WHAT DOES USCIS’S POSITION MEAN FOR THOSE INVOLVED IN THE CANNABIS INDUSTRY?
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USCIS’ decision to disregard US state and other countries’ federal laws as they related to moral character determinations has, and will continue to have, significant negative consequences to those involved in the cannabis industry. It is worth noting that according to USCIS, even an “admission to committing acts that constitute the essential elements of a violation of any controlled substance law” will be enough to establish the bar. As virtually any act involved in the production and sale of cannabis is deemed to be a violation of federal law, any involvement in the industry would likely make it almost impossible to naturalize.
In addition to the naturalization issue, there are many other negative effects that cannabis-related activity can have when it comes to obtaining immigration benefits. For instance, Permanent Residents involved in the cannabis industry could potentially lose their status if they are convicted of a felony for violating federal controlled substances laws. Additionally, as has become evident recently given the increasing cross-border interactions between the Canadian and US cannabis industries, Canadians can be barred permanently from entering the United States due to their involvement in the cannabis industry.
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Anyone who is, or will be, subject to United States immigration laws should think carefully about becoming involved with the Cannabis industry and consider speaking with a qualified immigration attorney. Even the most peripheral involvement in the industry can have lasting negative consequences.
In the meantime, four congressional Democrats from Colorado sent a letter to the heads of the Justice Department and Department of Homeland Security on April 29, 2019, imploring the officials to end a policy preventing immigrants who work in the marijuana industry from gaining U.S. citizenship. Rep. Joe Neguse (D-CO), who led the letter, said he wrote it in response to the cases of two Coloradans who were seeking citizenship but were denied by USCIS on the sole basis that they’ve worked in the state’s legal cannabis market.
Not sure if your activities could put your immigration status at risk? Schedule a Discovery Session with one of The Grady Firm’s immigration attorneys to assess your current risk.
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.