At the Intersection of Cannabis and U.S. Immigration Law: Issues that Canadians (and other Non-Citizens) Should Be Aware Of

With the legalization of cannabis in Canada, Canadians may reasonably think that use and/or possession of marijuana or being involved in a licensed cannabis business as an employee, officer, or shareholder in accordance with local laws may not present issues when travelling to the U.S. This, however, is incorrect.

For purposes of U.S. immigration and nationality law, the federal law controls. Both current and past violations of federal law by a non-citizen traveler are grounds for not admitting the traveler to the U.S. At the federal level, cannabis is still classified as a Schedule I substance (along with heroin and ecstasy) under the U.S. Controlled Substances Act, which is the ranking reserved for drugs with the greatest potential for abuse and with no medicinal value. U.S. federal law has no exception for medical use of marijuana.

Accordingly, Canadians and other non-citizens seeking admission to the U.S. should be aware that engaging in cannabis-related activities, even if they are lawful under U.S. state and/or Canadian laws, may present issues at the U.S. port of entry and result in a finding of inadmissibility by the U.S. Customs and Border Protection (“USCBP”) Service. If the USCBP makes such a finding, a person will be denied entry to the U.S. and need to obtain an advance permission to enter the U.S. by applying for a waiver of inadmissibility.

What Does the U.S. Immigration Law Say?

Generally speaking, a non-citizen applying for admission to the U.S. must prove that he or she is admissible under the U.S. Immigration and Nationality Act (“INA”). INA sets forth the requirements for admitting or denying non-citizens entry into the U.S. The INA allows the USCBP to deny non-citizens entry to U.S. if they are in violation of federal law. Neither the U.S. Congress nor the USCBP has adopted any exceptions for cannabis-related activities which are in accordance with local laws.

  • Inadmissibility Due to “Aiding and Abetting” in Controlled Substance Trafficking

Under the INA, a noncitizen is inadmissible to the U.S. if immigration authorities have “reason to believe” that a person is, or has been, an illicit trafficker, or a knowing aider, abettor, assister, conspirator, or colluder with others, in the trafficking of any federally controlled substance, including marijuana. Spouses, sons, or daughters of such persons are also inadmissible if, within the last five years, they have benefitted from such trafficking.

Up until recently, the USCBP has taken a view that working for or otherwise being involved as an officer or shareholder in a licensed cannabis business constitutes “trafficking,” irrespective of whether the individual comes in contact with cannabis itself. However, in a recent statement, the USCBP clarified that “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. However, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”[1] (emphasis added) Keep in mind that the threshold of proof for the USCBP to find a person inadmissible is very low (“reason to believe”).

In addition if a non-citizen is involved in cannabis-related activities and such person is traveling for business, the USCBP may determine that a person is traveling to the U.S. for reasons related to the marijuana industry. The USCBP may still make that determination based on the person’s relation to cannabis-related activities in the U.S. even if the person does not intend to become involved in cannabis-related activities in the U.S.

  • Criminal Inadmissibility: Conviction or Admission to Having Committed a Violation of Controlled-Substances Laws

Another basis for inadmissibility applies to persons who have been convicted of, or who admit to having committed the essential elements of, a violation of, or conspiracy or attempt to violate, any law or regulation of a state, the United States, or a foreign country relating to a controlled substance. Again, a “controlled substance” under the INA includes cannabis. While most travelers to the U.S. are generally aware that formal criminal convictions may have serious immigration consequences, many non-citizens are surprised to discover that a mere admission of having engaged in (or planning to engage in) conduct that constitutes a violation of controlled substance laws, is sufficient to deem a person inadmissible to the U.S.

For an act to result in criminal inadmissibility under the INA, it must be considered a crime in the jurisdiction where it was committed. With the legalization of cannabis in Canada, using and possessing cannabis will generally no longer be considered a criminal offence under Canadian law. Accordingly, going forward, this conduct should no longer constitute a criminal ground of inadmissibility for Canadian citizens. However, Canadians should keep in mind that admitting to prior marijuana use (before the Cannabis Act coming into effect) may still result in a finding of inadmissibility.

If I Am Found Inadmissible, Can I Obtain a Waiver?

For non-immigrants, most forms of inadmissibility, with notable national security exceptions, can generally be waived. An application for a waiver of inadmissibility can take anywhere from several months to up to a year to adjudicate. Waivers can only be issued for a maximum of five years, but often times the authorities decide to issue waivers in one-year increments only, requiring annual re‑application.

Importantly, the USCBP will only issue a waiver if the offending conduct has ended. if a person is found inadmissible due to involvement in the cannabis industry and that involvement is continuing, he or she will not be able to obtain a waiver if such involvement continues.

What Are the Key Takeaways?

Until the U.S. federal laws change with respect to the treatment of cannabis, or, at least, until such time as the USCBP issues clearer guidance with respect to its treatment of Canadian investors, workers and others involved in licensed cannabis businesses, such individuals should be prepared for additional scrutiny at the U.S. port of entry and be mindful of potential U.S. immigration consequences.

If you are involved in a licensed cannabis-business and get questioned by a USCBP or other immigration officer, keep in mind the following:

  • IMPORTANT! Do not make any misrepresentations to a USCBP officer or any other immigration official. A finding of misrepresentation or fraud makes a person inadmissible, so do not lie.
  • BUT! Be careful with your own statement at the border office. If asked directly about any cannabis-related activities, be mindful that your own statement about your involvement/activity can immediately subject you to inadmissibility. Listen carefully to what the officer is asking. Canadians involved in the cannabis industry may consider responding, for instance, that they have not violated any law of Canada, US or anywhere, and that they do not intend to violate any law with respect to cannabis or other controlled substances.  With such a response, you are still likely to be denied entry to the U.S. for failure to cooperate, but, in most cases, this is generally better than CBP finding you permanently inadmissible under controlled substance grounds.
  • Keep in mind that USCBP has broad authority to search personal belongings, including electronic devices, at the port of entry. Information and documents you carry in your physical or “virtual” briefcase may be inspected and used by an inspecting officer to determine your admissibility.
  • Similarly, be mindful of what you share on your social media platforms. If your social media activity or other source (news article, press release, company website) mention your association with the cannabis industry, you may be subject to additional scrutiny at the border. U.S. immigration authorities consistently use these tools to review and determine a person’s eligibility for admission to the U.S.

Because engaging in cannabis-related activities may have significant U.S. immigration consequences, non-citizens involved in licensed U.S. or Canadian cannabis businesses as shareholders, officers or employees may want to seek the advice of counsel prior to travelling to the U.S. or seeking other U.S. immigration benefits.

Dorsey’s immigration law professionals can be contacted at immigration@dorsey.com.

 

[1] https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border