State Legalization of Cannabis Doesn’t Shield from US Visa and Citizenship Disqualification

Even though cannabis is legal in New York, it can be disqualifying for US visas and citizenship. In some states, such as New York, cannabis is legal for recreational purposes. However, cannabis is still illegal at the federal level in the US. Since the 1930s, the use, sale, or distribution of cannabis has been illegal under federal law. Current federal drug laws are codified in the Controlled Substances Act (CSA).

On May 21, 2024, the Justice Department published a notice of proposed rulemaking with the Federal Register to initiate a formal rulemaking process to consider rescheduling marijuana under the Controlled Substances Act.

The Drug Enforcement Administration has set a hearing for December 2 on the Biden administration’s proposal to reclassify marijuana under federal drug laws, effectively postponing the decision until after the November election.

“Until a final rule is published, marijuana remains a Schedule I controlled substance and is subject to the limitations of Internal Revenue Code Section 280E.,” the IRS also reminds.

The US can even deny a visa if an individual is found to have consumed cannabis. When applying for a US visa, details of social media accounts must also be provided. If the applicant is found to be consuming or carrying cannabis in any way, US authorities may raise questions. Citizens of countries that are granted on-arrival visas may also be denied entry at the airport or at the border.

“Even if you use cannabis in a state or country where cannabis consumption is legal, you may be ineligible for a US visa and citizenship if found by immigration officials,” said US immigration attorney Keshab Raj Seadie.

“A number of states and the District of Columbia (D.C.) have enacted laws permitting ‘medical’ or ‘recreational’ use of marijuana. Marijuana, however, remains classified as a ‘Schedule I’ controlled substance under the federal CSA. Schedule I substances have no accepted medical use pursuant to the CSA. Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to good moral character for naturalization eligibility, even where such activity is not a criminal offense under state law,” reads the policy manual of USCIS.

“Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of good moral character (GMC) for the applicant during the statutory period. An admission must meet the long-held requirements for a valid ‘admission’ of an offense. Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense,” USCIS further clarifies.

There is an exception for a single offense of simple possession. The Code of Federal Regulations clarifies that the conditional bar to 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. This exception is also applicable to paraphernalia offenses involving controlled substances as long as the paraphernalia offense is “related to” simple possession of 30 grams or less of marijuana.

“US Citizenship and Immigration Services and CBP officers have tried to entrap immigrants by questioning them at length about their use or possession of cannabis. If an applicant admits to having used or possessed marijuana within five years, officers have had them sign ‘marijuana affidavits’ that prevent them from becoming permanent residents or citizens for another five years,” said US immigration attorney Keshab Raj Seadie.

“Moving marijuana from Schedule I to Schedule III, without other legal changes, would not bring the state-legal medical or recreational marijuana industry into compliance with federal controlled substances law. With respect to medical marijuana, a key difference between placement in Schedule I and Schedule III is that substances in Schedule III have an accepted medical use and may lawfully be dispensed by prescription, while substances in Schedule I cannot,” a CRS report reads.