Beware of the Dangers of Marijuana Legalization Laws for Non-U.S. Citizen Workers

by: Shipman & Goodwin LLP 

The Conflict between U.S. and Foreign Marijuana Legalization Laws and U.S. Federal Drug and Immigration Laws

The use of legalized marijuana for medicinal purposes is legal in 33 U.S. states and the District of Columbia, and the recreational use of marijuana is legal in 10 U.S. states and the District of Columbia. Other U.S. states are currently considering the enactment of similar legalization of marijuana laws. Numerous foreign countries, such as Canada where the Cannabis Act came into effect on October 17, 2018, also have decriminalized marijuana use. However, as a matter of U.S. federal law, marijuana is still classified as a Schedule I drug under the Controlled Substances Act of 1970 (“CSA”). Therefore, the possession, cultivation, distribution, purchase and sale of marijuana remain illegal under the CSA.

Like the CSA, U.S. immigration law is also federal law. Therefore, U.S. immigration law treats any marijuana-related activity as a crime, with severe penalties, even if the marijuana-related activity occurs in a U.S. state, the District of Columbia or foreign country where the marijuana-related activity is legal.

With the increase of diversity in the workplace, an increasing number of U.S. employers have non-U.S. Citizen workers in their workforce. The marijuana legalization laws have lulled many non-U.S. citizen workers into thinking that using marijuana legally under these laws will not harm or jeopardize their current lawful U.S. immigration status or their chances of obtaining such status.

Unfortunately, such thinking is wrong and often leads to disastrous consequences. A non-U.S. citizen who admits to engaging in a marijuana-related activity to a U.S. immigration official can be found inadmissible to the U.S., denied entry, or have his or her application for lawful U.S. permanent resident status or citizenship denied. It can also make otherwise lawful U.S. permanent residents deportable. This danger arises whether the admission is made to a Customs and Border Protection (“CBP”) officer at a U.S. port of entry, a U.S. consular officer at a U.S. consulate or embassy abroad, a United States Citizenship and Immigration Services (“USCIS”) officer at a green card or naturalization interview, or an Immigration and Customs Enforcement (“ICE”) officer during a street stop. These severe consequences can occur even if the marijuana-related activity was legal under applicable U.S. state or foreign law, the U.S. non-citizen worker was never convicted of a crime, or the activity took place in the privacy of his or her home.

A case in point is the recent denial of U.S. citizenship to Oswaldo Barrientos, a thirty-year-old worker from El Salvador who immigrated to the U.S. with his mother when he was one-year old and works in the legal marijuana industry in Denver, Colorado. Although he is a tax-paying legal U.S. resident without a criminal record, Mr. Barrientos recently was denied U.S. citizenship for “lacking good moral character” solely because he works in the legal Colorado marijuana industry. There are also reports of similar denials of U.S. citizenship by USCIS officers to other legal U.S. permanent residents in Colorado and Washington, another U.S. state where marijuana use also has been decriminalized. Additionally, there has been an increase in the frequency of immigration officers asking non-U.S. citizens if they have ever used marijuana, particularly in states where marijuana use is legal.

USCIS’s intent to deny immigration benefits to U.S. non-citizens based on their involvement in marijuana-related activity was underscored on April 19, 2019, when USCIS issued a policy guidance in its Policy Manual (12 USCIS-PM F.5) on controlled substance related activity and good moral character determinations. This guidance clarifies USCIS’s position that a violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing good moral character for naturalization even where the conduct would not be a violation of state or foreign law.

What Advice Should U.S. Non-Citizens Workers Heed As A Result of this Current Conflict Between Marijuana Legalization Laws and Federal Drug and Immigration Laws?
In the face of the current conflict between U.S. state and foreign decriminalization of marijuana laws and federal drug and immigration laws, it is advised that a U.S. noncitizen worker:

• Refrain from the use of marijuana until he or she becomes a U.S. citizen.
• Seek legal advice if he or she is currently employed or considering employment in the legalized marijuana industry.
• Get legal advice if he or she needs medical marijuana for a medical condition and there is no good substitute for such use.
• Refrain from carrying marijuana, a medical marijuana card, or marijuana stickers, t-shirts, or other marijuana paraphernalia.
• Remove any text or photos relating to marijuana from his or her social media and telephone.
• Seek legal advice prior to answering any questions from immigration or law enforcement officers related to marijuana related conduct.

The conflict between state and foreign decriminalization of marijuana laws and federal drug and immigration laws may be resolved if more U.S. states and foreign countries continue to follow the trend of legalizing marijuana-related activities. Until this occurs, legal non-U.S. citizens in the U.S. workforce remain at risk of losing their legal immigration status because they have previously engaged in a marijuana-related activity that was legal in the place where the conduct occurred.