Updated: March 19, 2019
Nine US states, and the District of Columbia, have now legalised the use of cannabis for recreational purposes. Additional states allow it by prescription or otherwise for medical use. One might think that use of cannabis in those US states where it is legal is, therefore, no longer a problem for US immigration law. Unfortunately this is not true.
The difficulty lies in the very nature of the United States’ legal system, where both the central (federal) and the state governments have often overlapping jurisdiction to regulate conduct through the criminal law. (The complexity of the system has created the common idiom ‘don’t make a federal case out of it,’ meaning not to blow something out of proportion.)
Possession, sale and use of cannabis in all its forms are prohibited by federal law, the Comprehensive Drug Abuse Prevention and Control Act of 1970. ‘Marihuana’ is a Schedule I drug for federal purposes, meaning that it is considered to have a ‘high potential for abuse,’ no ‘currently accepted medical use’ in the United States, and no safe method for use under medical supervision. An uneasy and temporary accommodation between the federal government and those states that allow use of cannabis was set out in an August 29, 2013 policy memo to all US Attorneys—that is, the highest-ranking prosecutors in the federal government—in which the Obama administration’s Department of Justice directed prosecutors that their limited resources should not be used to prosecute people and businesses buying, selling or using marijuana in accordance with well-enforced state regulatory systems. A 2014 amendment to federal law that sought to enshrine in statute the federal ‘hands-off’ policy, at least concerning cannabis dispensed medically, has had uneven success and must be renewed annually. The opinion of the current Attorney General (head of the Department of Justice) has long been that ‘good people don’t smoke marijuana,’ and on January 4, 2018 he rescinded the earlier direction to US Attorneys. This reassertion of federal supremacy opens the door for prosecution of marijuana users or sellers even where such activity is legal under state law.
For now, the situation is as follows: A person who has been convicted of violating a law (of any jurisdiction, whether US or foreign) relating to controlled substances as defined by the US Congress in the Controlled Substances Act or who admits to having done so, is inadmissible to the US under section 212(a)(2)(A) of the Immigration and Nationality Act (INA). Even if a person has used cannabis only in jurisdictions where it is legal (Colorado? Amsterdam?) the person can still be denied a visa as a ‘drug abuser or addict,’ under section 212(a)(1)(A) of the INA. See our website article Washington, We Have a Problem! Ineligibilities and Waivers for more information about grounds for visa denials and ineligibility. Prospective visitors wanting to partake of legalized cannabis in the United States must first run the gauntlet of a US immigration inspection (by a CBP officer at entry or by a consular officer at an embassy abroad) that is hostile to their plans.
Although we hope that this article and the others on our website have been helpful, no articles can cover all permutations of the facts. They should not be relied upon as a substitute for legal advice based upon the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.