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U.S. Marijuana Laws and Immigration: What Immigrants Must Know?

Both medical and recreational use of marijuana has become legalized or decriminalized in many countries throughout the world, as well as in many states throughout the United States. 

Because marijuana is treated differently by governments throughout the world, including in the U.S., individuals who immigrate to new countries – especially the United States – must understand what they are allowed and not allowed to do regarding marijuana. 

This article discusses what United States immigrants must know about marijuana laws in the United States. 

Is Marijuana Legal in the United States? 

Is Marijuana Legal in the United States

Yes and No.  The recreational use of cannabis has been legalized in 24 states, two U.S. territories, and the District of Columbia Another seven states have decriminalized its use. 

At the same time, marijuana in any form is still illegal under U.S. federal law.  This means that individuals who use marijuana in a state where it is legal may still be subject to prosecution under federal law.  

How is Marijuana Regulated in the United States? 

Most of the laws that control what private individuals can and cannot do are enacted and enforced by the U.S. state governments where individuals live.  Yet, when federal law and state law say opposite things about what individuals can and cannot do, the federal law will be enforced despite what the state law says — including the regulation of marijuana. 

Even though medical marijuana has been legalized in  24 states, two U.S. territories, and D.C., marijuana remains illegal in all forms under U.S. federal law.  This means that these state governments will not prosecute individuals who use marijuana; but, the federal government may still decide to prosecute.

It is rare for U.S. citizens to be prosecuted under federal law for the use of marijuana in a state where it is legal.  This is because the federal government generally respects the right of state governments to decide what is and is not legal in their state, so long as it doesn’t affect a constitutional right. 

However, immigrants/noncitizens may face serious consequences to their immigration status if they use or possess marijuana. This is because immigration status is determined under the sole discretion of the federal government.

Can Noncitizens Use Recreational or Medical Marijuana in the U.S? 

For noncitizens in the U.S., navigating the laws around recreational or medical marijuana use is crucial due to the potentially serious consequences under U.S. federal law. Here’s a breakdown to help understand the situation more clearly:

  • Federal Law Supersedes State Law:
      • U.S. federal law prohibits marijuana use. This is crucial for noncitizens to understand because immigration matters fall under federal jurisdiction.
  • Impact on Immigration Status:
      • The federal government enforces immigration laws. Therefore, any decisions regarding an immigrant’s status in the U.S. are based on federal, not state, law.
  • Risks Despite State Legalization:
      • Even if a state has legalized marijuana, noncitizens using marijuana in that state still risk facing federal penalties. This is because federal law, which prohibits marijuana use, takes precedence over state laws.
  • Consequences for Noncitizens:
    • Potential penalties for noncitizens caught using marijuana in the U.S. can be severe, including deportation. This applies irrespective of whether the use was for recreational or medical purposes and regardless of the state laws where they reside.

What Consequences Will Noncitizens Face If They Use, Possess, or Sell Marijuana?

Under U.S. immigration law, noncitizens who use marijuana may be considered “inadmissible”. This federal law enforces the federal laws that make marijuana illegal, regardless of the state laws where it may be legal. Even if noncitizens reside in states where marijuana is legal, they may face serious consequences if U.S. immigration authorities discover that they have been using marijuana.

Here is a breakdown of some of the consequences that exist under U.S. immigration law for noncitizens who use, possess, distribute, or sell marijuana: 

Deportability

Noncitizens who are convicted of a crime related to marijuana under state or federal law can be deported. This includes convictions under laws that ban the use, possession, sale, distribution, manufacture/growth, or transport of marijuana.  An exception to this, however, applies to lawful permanent residents who are convicted of possessing 30 grams of marijuana or less are not deportable, but are inadmissible. 

Inadmissibility

Noncitizens who are deemed “inadmissible” are not permitted to enter the United States.  This means a noncitizen will be prevented from entering the U.S. at a port of entry by revoking a visa stamp or denying a visa stamp application. 

Noncitizens may be deemed inadmissible if:  

Reasons for Inadmissibility:

  • Noncitizens may be deemed inadmissible for various reasons:
    • If they’re convicted of a marijuana-related crime under state or federal law.
    • If they admit to using or possessing marijuana.
    • If they’ve participated in or facilitated the commercial trafficking of marijuana, or benefited from such activities by a family member.
    • If the government suspects their involvement in drug trafficking.
    • If they’re traveling to the U.S. intending to engage in the marijuana industry.
    • If they’re found to be currently addicted to or abusing marijuana.

Determining Admissibility:

  • The U.S. Citizenship and Immigration Services (USCIS) assesses whether a noncitizen has shown “good moral character” regarding their admissibility.
  • If an individual fails to prove they haven’t committed such offenses, they may be deemed lacking in good moral character, making them inadmissible.

Impact on Entry:

  • Being labeled as inadmissible can result in the revocation of a visa stamp or denial of a visa stamp application, preventing entry into the U.S. at ports of entry.

Understanding these factors is crucial for noncitizens to navigate the rules surrounding entry into the United States without facing inadmissibility issues.

How to Protect Yourself from Deportation and Inadmissibility Over Marijuana?

Protect Yourself from Deportation

Because U.S. law surrounding marijuana is confusing and complex, especially for noncitizens, noncitizens must know how to protect themselves from deportation or inadmissibility because of marijuana.  

Here are some tips noncitizens can use to prevent deportation or inadmissibility:

  • Make sure you understand the consequences for the use, possession, sale, etc. of marijuana before meeting with any Department of Homeland Security or Department of State employee, or with a doctor at a medical visa interview, and before answering any questions about your history with marijuana. 
    • If you have a history of marijuana, seeking the legal advice of an immigration attorney may be especially important. 
  • Avoid marijuana until you are a U.S. citizen; 
  • Avoid carrying marijuana, a medical marijuana card, or even marijuana paraphernalia, including posting marijuana-related content to social media or elsewhere; 
  • If you have a medical condition that you believe requires the use of medical marijuana, seek legal consultation from an immigration attorney; 
  • If you have a history of marijuana use or working in the marijuana industry, seek legal consultation before exiting the United States, or applying for naturalization or immigration status
  • If you have a history with marijuana that you believe may make you “inadmissible,” consult with an immigration attorney before taking any action that would require immigration officials to assess your admissibility. This includes leaving the country with the intent to return, whereupon your admissibility will be evaluated. 
  • Do not discuss any conduct involving marijuana with immigration, border, consular, or law enforcement authorities unless otherwise advised to do so by your immigration attorney. 
    • This includes: 
      • USCIS 
      • Customs and Border Patrol (CBP)
      • Immigration and Customs Enforcement (ICE)
      • Local or state law enforcement (even if it is legal in your state)
      • Consular officers at a U.S. Consulate or Embassy
  • Declining to answer a question from an immigration official (also known as “pleading the Fifth”) may be a preferable course of action for those who use marijuana or have a history of marijuana use.  
    • Pleading the Fifth will not erase the issue — a noncitizen may still not be granted admission to the United States; however, a noncitizen may be found permanently inadmissible if they admit to marijuana use or possession. 

FAQs

Is medical marijuana legal under U.S. federal law?

No, medical marijuana is not legal under federal law in the U.S. even though 36 states have legalized it. Because immigration is handled federally, immigrants can still face consequences like deportation and being barred entry to the U.S. for using medical marijuana per state laws.

Can a green card holder lose their status for possessing marijuana?

Yes, lawful permanent residents can be deported if convicted of any marijuana-related offense under federal or state law. An exception applies to possession of less than 30 grams, which results in inadmissibility instead of deportation.

What are some ways immigrants can avoid risks related to marijuana use?

Immigrants should avoid marijuana altogether and be cautious about carrying paraphernalia or admitting use to officials. Those with a history of marijuana use should consult an immigration attorney before traveling or applying for any immigration benefit to understand the risks.

Conclusion

Despite loosening state laws, federal prohibition leaves immigrants vulnerable. Noncitizens must comprehend stringent marijuana restrictions tied to admission and status, lest harmless state-legal use incurs immigration consequences. Consultation ensures informed decisions protecting residency.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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