Marijuana still is considered a Schedule I drug under the federal Controlled Substances Act. A conviction under the Controlled Substances Act can lead to severe consequences for a non-U.S. citizen.

Under U.S. immigration law, any non-U.S. citizen who is convicted under the Controlled Substances Act, even green card holders, who participate or make investments in the marijuana industry or use marijuana where it is legal (even for medicinal purposes) may be subject to inadmissibility, be barred from returning to the United States or be prevented from naturalizing (for at least five years). For example, a Russian national reportedly was denied a green card (although he has not been deported) for “aiding and abetting” in the trafficking of marijuana for “installing and maintaining a security camera system for a cannabis grower ….”

Serious immigration consequences can result even in states where employees may be protected from employer sanctions based on marijuana use. Currently, 37 states (and the District of Columbia) have decriminalized marijuana or enacted laws authorizing its use for medical or recreational purposes. Additionally, some states prohibit employers from disciplining employees for marijuana use outside of the workplace, and some states prohibit employment discrimination against medical marijuana users. As employers adopt policies in line with state laws, they should be careful not to encourage non-citizens to participate in activities that involve marijuana and remind all employees that, while there may not be many federal prosecutions for individual use, the possession, sale, cultivation, and distribution of marijuana remains illegal under federal law and may have serious immigration consequences. 

Congress is considering legislation to decriminalize marijuana, i.e., the Marijuana Opportunity Reinvestment and Expungement (MORE) Act and the Cannabis Administration and Opportunity Act (CAOA). If the MORE Act or the CAOA is passed, it would eliminate the confusing conflicts that arise for foreign nationals between state and federal law. Either law would:

• Remove marijuana from Schedule I of the Controlled Substances Act;

• Expunge low-level federal marijuana convictions;

• Create new marijuana industry opportunities in states where the industry is legal; and

• Eliminate the threat of inadmissibility or deportation for foreign nationals participating in the legal marijuana industry.

Until marijuana is decriminalized at the federal level, foreign nationals must be wary.