Drugs that are considered controlled substances under Federal law can lead to immigration consequences to non-US citizens if they possess, manufacture, or sell such controlled substances. Under federal law marijuana or cannabis is still considered a controlled substance. This means that even if a state legalizes activity related to marijuana, such law does not circumvent federal law and the possession, manufacture or selling of drugs related to marijuana is still illegal under federal law.
The result is that noncitizens that own a business or are employed by a business that sells marijuana-based products may still face significant immigration consequences including loss of status, inability to re-enter the United States or inability to obtain US citizen status because of the marijuana related activity. You can view our discussion of immigration consequences resulting from controlled substance offenses by clicking here.
Does it matter that I have never used or possessed marijuana and my prospective job will involve only answering client questions about my employer’s product?
Never having used marijuana does not completely avoid potential legal consequences. First, although using marijuana is not an illegal activity under federal law, an immigration officer in the context of determining whether a noncitizen has possessed marijuana which is an illegal activity, may conclude possession through the fact of past use of marijuana. Furthermore, the more concerning issue is that even if legal under state law, a noncitizen can still be prosecuted for aiding and abetting possessing, manufacturing, trafficking of marijuana under federal law which if convicted can lead to severe criminal penalties as well as significant immigration consequences.
What if I am never convicted under federal law for aiding or abetting any marijuana related activity such as possession, manufacturing, or trafficking?
A noncitizen participating in any of these activities even if never having been convicted is still at risk depending on the circumstances underlying the encounter with an immigration officer. Noncitizens without status risk being disqualified from seeking status simply based on evidence or admission of such activity. Legal permanent residents who travel and seek re-entry into the United States are at risk of being denied entry or placed in removal proceedings if there is evidence or an admission of participating in such activity. Finally, legal permanent residents can be denied their citizenship application if USCIS determines they lack good moral character based on participation in such activity during the statutory period of three or five years required to prove good moral character.
Wasn’t there a change in law that made certain marijuana-based substances legal under federal law?
On December 20, 2018, the US President signed into law the Agriculture Improvement Act of 2018 which removed hemp and hemp extracts from the list of controlled substances.
Does that mean that all hemp is now legal in the United States?
Not necessarily. The problem is that hemp is a marijuana-based substance that is technically identified by the amount of a specific chemical known as delta-9 tetrahydrocannabinol, “delta-9 THC” contained within the substance. This means that it does not really matter what a substance is identified as by name since a substance will be recognized by the amount of delta-9 THC. Therefore, a substance is identified as hemp and therefore not an illegal substance if the substance contains a concentration of not more than 0.3 percent of delta-9 THC on a dry weight basis. Moreover, a hemp extract known as Cannabidiol, “CBD” which can be extracted from either hemp or marijuana is also not considered a controlled substance if extracted from hemp or a marijuana-based substance with a delta-9 THC percentage less than 0.3 percent meaning that CBD extracted from a marijuana-based substance containing more than 0.3 percent of delta-9 THC is still considered a controlled substance.
If the business I work for only deals with hemp related products like CBD then I shouldn’t worry about any future immigration consequences?
Maybe. If you have never been convicted of a past marijuana offense and your business only deals with hemp-based products you are in a better situation, but not in a totally safe situation. If you are a noncitizen seeking physical admission into the United States or legal status or a legal permanent resident seeking physical admission into the United States, the state of the law is not clear enough to guarantee that the immigration officer encountered may not decide to place your status in jeopardy even if you only participated in activity related to hemp especially if the activity happened since before 2018. Note the riskiest cases are those at the border where a noncitizen is totally at the mercy of the border control officer in contrast to a case before an immigration official within the United States where an attorney can be hired to contest a potentially adverse decision.
I heard that if a noncitizen has only participated in drug activity that is considered legal in their country of origin such activity will not result in adverse immigration consequences in the United States?
For the most part, this is not true. Any drug activity related to possession, manufacturing or distribution that does not lead to a conviction or is considered legal in a foreign country can still lead to a denial of status or termination of status if a noncitizen is seeking status in the United States and/or is seeking physical entry into the United States. The only exception that has been addressed by Customs and Border Patrol are citizens from Canada who have been involved in the marijuana industry and who seek entry into the United States for a purpose not related to the marijuana industry. However, be advised again that such an individual is subject to the complete discretion and interpretation of the situation by the officer inspecting the individual.
Consult with an attorney
The main point to remember is that drug related activity that results in a conviction, or evidence or admission of violation of a law on the books related to a drug offense definitely will get you into trouble with immigration. Short of that starts to become somewhat unclear but peril is still significant for noncitizens without status seeking status or any noncitizen seeking entry into the United States even when there is not a conviction. It is very important to always speak with an immigration attorney to discuss your circumstances and if it is necessary to prepare and guide you if you are facing such a situation.
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