Although legalization of marijuana is becoming more prevalent throughout states, the use and sale of marijuana remains illegal under federal law. Because immigration benefits are controlled by federal law, this differential could pose serious inadmissibility, removability, and good moral character issues for noncitizens living and working in states where marijuana is legal. Even if a noncitizen possessed, used, or sold marijuana in accordance with state law, his or her lawful immigration status, or ability to obtain lawful immigration status, could still be in jeopardy.

In states where marijuana is legal, such as Colorado and Washington, United States Citizenship and Immigration Services (USCIS) has reportedly increased marijuana-related screening at residency and citizenship interviews. In these states, a noncitizen’s reasonable reliance on state marijuana laws could ultimately result in a finding of a controlled substance violation under federal law. There are several ways in which a USCIS officer can screen a noncitizen for possible marijuana-related activity throughout an application process. Therefore, it is imperative that noncitizens fully understand the implications of marijuana possession, use (medical or recreational), and work in the cannabis industry before applying for any immigration benefits.

One way that USCIS officers can screen a noncitizen for possible marijuana-related activity is through the actual application. Both the residency and citizenship applications contain questions concerning an applicant’s employment history. In states where recreational marijuana is legal, noncitizens who have worked in the marijuana industry – such as at a cannabis farm or dispensary – could face serious immigration consequences under INA § 212(a)(2)(C)(i). Under this section, a noncitizen is inadmissible if the immigration officer has “reason to believe” that he or she has been an illicit trafficker in a controlled substance, such as marijuana. The simple act of listing such work (as is required on the applications) could provide an officer with enough “reason to believe” that the applicant has violated a federal controlled substance law under this broad standard.

Another way that a USCIS officer can screen a noncitizen for possible marijuana-related activity is using a “Record of Sworn Statement.” Even without a formal criminal conviction, an immigration office may still determine that a noncitizen is inadmissible if he or she admits to the elements of a controlled substance offense in violation of INA § 212(a)(2)(A)(i)(II), provided the admission is free and voluntary and covers all of the elements of an offense. The Department of Homeland Security (DHS) argues that the “Record of Sworn Statement” used by USCIS officers is sufficient to support a finding that a noncitizen has admitted to a controlled substance violation, such as possession and/or use of marijuana.  

For a noncitizen, understanding how marijuana possession, use, or work in the cannabis industry could affect his or her lawful immigration status is imperative, especially where such activity is lawful under state law. If you or anyone you know has any questions about how marijuana-related activity could affect your lawful immigration status or application for immigration benefits, please contact an immigration attorney at Wilson Law Group before applying or interviewing for any benefits.