A recent policy alert issued by U.S. Citizenship and Immigration Services (USCIS) highlights the conflict between federal and state laws when it comes to marijuana use. The alert reiterates that engaging in marijuana-related activities (use, possession, etc.) may trigger findings of federal controlled substance violations, even when those activities are permitted at the state level. In other words, it is important to remember that marijuana use can have legal consequences even in states where its use is allowed. Foreign nationals, in particular, risk losing immigration status or being denied naturalization if they are found to have engaged in such activities.
To date, 10 states (plus the District of Columbia) have legalized recreational marijuana use, and more than 30 states (as well as the District of Columbia) have approved the use of marijuana for medical purposes. However, despite ongoing nationwide efforts to decriminalize the drug, the federal government considers marijuana a prohibited controlled substance. This may be particularly problematic for foreign nationals seeking immigration benefits because no conviction or arrest is required to establish a violation under federal immigration law. A mere admission of behavior involving the use or possession of a controlled substance is sufficient. In fact, even employment in the marijuana industry can trigger a violation, regardless of whether the employee consumed or otherwise possessed marijuana.
In its policy alert, USCIS clarified that controlled substance violations, including those related to marijuana, may prevent a foreign national from demonstrating good moral character, an essential requirement for establishing eligibility for naturalization. Controlled substance violations are also grounds for determinations of inadmissibility, and may affect a foreign national's eligibility for a visa, green card, or change of status. U.S. Customs and Border Protection has issued similar guidance cautioning travelers about the impact of marijuana use on their admissibility and eligibility for visas. Employers may want to review the contents of this policy alert with foreign nationals.
Ogletree Deakins' Immigration Practice Group will continue to monitor developments and will post updates on our immigration blog as additional information becomes available.
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