Marijuana possession has been decriminalized or legalized in many states including Colorado and Washington, either for medical or recreational (fun) use. But the legal use of marijuana can still create harsh consequences if you’re trying to get a U.S. visa, green card, not be deported, or become a citizen. Here are some important concepts:
- State and federal law are different. There are 50 U.S. states and each state has its own laws in many areas, including drug and crimes. And there are also federal or national laws passed in Washington, D.C. that apply to all people in all 50 states. There are many conflicts between the state and federal laws.[1]
- Crimes never disappear in immigration. You may have a pardon for a past conviction but convictions that are pardoned or expunged are treated the same as any other conviction in immigration. You may be able to legally state you’ve never been convicted of a crime on an employment application, but you still have to include it on your immigration application.
- The government knows everything about you. Sometimes people don’t reveal a past conviction on purpose, because they consider it minor. But if you don’t, the government will almost certainly find out about it anyway, and then you’re in worse shape for not revealing it.
- Simple possession of 30 grams or less can be ok. In general, you can still be approved if you have one conviction for simple possession of less than 30 grams of marijuana for personal use. That’s a little more than an ounce.
Under the Immigration & Nationality Act, a person with a conviction for a controlled substance offense anywhere in the world is inadmissible, deportable, or cannot naturalize. This can be true also for someone who even admits having committed such an offense even if there was no arrest or conviction. Marijuana is one of many controlled substances.
If the government decides you’re a “drug addict or abuser” you could have the same problem. This can happen when you have your physical exam abroad and the doctor decides you’ve used drugs, based on drug tests or questioning, and are therefore an addict or abuser. In the U.S. you’re allowed to get a copy of the doctor’s report that will be given to immigration and you can have a different doctor examine you. Outside the U.S. you’re not allowed to see the report so there could be a nasty surprise at your interview. Commonly, you won’t be able to re-apply for 12 months.
How has the federal government reacted to these state laws? Generally, the feds have stayed out of the way in a sort of “let’s see how this goes” approach. Nonetheless, there is no clear guidance on the immigration consequences of marijuana use. It’s vitally important to answer truthfully on any government application but the truthful answer can be hard to figure out, even for lawyers. For example, the very first question on a long list of interesting questions on the I-485 form for adjustment of status/green card for someone in the U.S. is:
“Have you EVER, in or outside the United States, knowingly committed any crime of moral turpitude or a drug-related offense for which you have not been arrested?”
Hmmm, how would you answer that question?! There’s a similar question on the application to naturalize. There are lots of other problems in this area. What if you’re visiting the U.S. from Canada to enjoy the fruits of the newly legalized crops? The border officer may not like your purpose and could refuse to let you in. What if you’re a business person involved in a legal pot-related enterprise? Again, this can be problematic. Use of “drug paraphernalia” can also land you in immigration trouble.
You have some options. You can try to get the government to use their discretion in your favor, or issue a waiver if allowed, and approve your application. These can involve legal arguments, submissions and documentation. The laws in this area are conflicting and evolving, so don’t take any drug use or abuse question lightly, and beware of the hazards of taking part in what you think is legal drug use.
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[1] This interesting article in the New York Times explains how a similar problem is affecting people applying for federal government jobs who have used pot in states where it’s legal. “State Marijuana Laws Complicate Federal Job Recruitment,” June 29, 2015.
