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Marijuana Use and Non-Immigrant Status: Is it Still A Problem Even If It Is Legal In My State?

Currently, there are 18 states within the US that have legalized recreational marijuana and many more have formulated some form of regulation surrounding recreational and medical marijuana use. If you live in a legalized state and want some fun there are some less-than-fortunate factors you still must take into consideration.

As a noncitizen you could be found inadmissible, removable, or temporarily barred from applying for naturalization based on previous marijuana related activities even if it is legal in the state in which you reside or in which the event took place. While it may be legal in your state unfortunately the possession of marijuana still constitutes a federal offense and immigration law still considers most if not all marijuana activity as a crime often accompanied with harsh immigration penalties.

Here is what you should know.

As a non-citizen you could be deported for a marijuana-related conviction under the controlled substance violation found in USCIS’s policy manual. One exception to this violation is the Exception for Single Offense of Simple Possession. Under the exception a conditional bar to GMC (Good Moral Character) for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana. Absent the possibility of an exception, the controlled substance violation can lead you to be declared inadmissible. Additionally, Lawful Permanent Residents are not immune as an LPR convicted of possessing 30 grams or less can be declared inadmissible—meaning if you travel abroad after a conviction you can be refused entry when you return to the United States (unless you qualify for and are granted a waiver, relief, or fall under the previously mentioned exception.)

Once it is time for you to being the process of naturalization, a marijuana-based conviction will temporarily bar you from establishing Good Moral Character (GMC) which is required over a span of five years immediately preceding your application for naturalization and prior to the time you take the Oath of Allegiance. Despite a five year period of consideration USCIS may and often does take conduct prior to the five-year period into consideration which may impact whether you meet the GMC requirement. If, during this period you fit the description in the controlled substance inadmissibility ground, you will have to start your GMC period all over again unless you fall within the single offense exception.

If you are unfortunate enough to find yourself in this predicament and have admitted to marijuana use what happens? It is important that you DO NOT discuss any conduct involving marijuana with immigration, consular, border or law enforcement authorities unless your immigration attorney has advised you to do so. Formally admitting to marijuana use can cause you to be found inadmissible. Moreover, remember that according to the U.S. Citizenship and Immigration Services (USCIS) Policy Manual, admission of conduct is a bar to establishing the GMC required for naturalization, even if the conduct is legal under state law. In a Policy Memo issued by USCIS April 19, 2019, USCIS:

Clarifie[d] that violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing GMC for naturalization even where the conduct would not be a violation of state law.

An applicant who is involved in certain marijuana related activities may lack GMC if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.

If you already have admitted to marijuana use to an immigration official, consult an immigration attorney as soon as possible. A verbal statement should not cause inadmissibility as an “admission” unless it meets certain requirements which your attorney will discuss with you.

The takeaway? Best practices are to stay away from marijuana until you are a US citizen. If you need medical marijuana for treatment seek a legal consultation. Do not carry marijuana on your person or a medical marijuana card without seeking a legal consultation. If you have used marijuana, or worked in the industry, before leaving the United States or applying for naturalization or other/change in immigration status you should seek a legal consultation.

Please make time to speak with an experienced immigration attorney if you have a marijuana-based conviction or are currently facing charges pertaining to marijuana use, possession, or distribution.

By: Juanita Deaver

Juanita Deaver is an Associate Attorney in the I-140 and AOS Department, where she assists clients in the middle and later stages of the green card process.

Juanita earned her J.D. from South Texas College of Law Houston in May 2021. As a law-student, Juanita interned at a non-profit organization where she discovered her passion for immigration while working on family-based cases helping file I-130 petitions and I-485 adjustments of status. During her time at South Texas, she further pursued her interest in the field of immigration law through enrollment in the school’s Immigration Clinics where she worked on TPS, T visas, and DACA cases. Her experience working with families and clients in emergency situations has provided Juanita the tools and experience to provide clear and concise explanations to the seemingly daunting immigration process.

Juanita joined Reddy & Neumann as a law clerk in December 2019. While clerking, she gained valuable experience by working closely under attorneys from each of the firm’s departments on drafting successful requests for evidence, appeals, motions to re-open, and through legal research on immigration matters. Juanita understands that every case is unique and hopes to provide each client with a better understanding of the ever-changing immigration process.