How Legalization of Recreational Marijuana Affects US Immigration

As of January 1, 2020 Illinois became the 11th US state to permit recreational use of marijuana. Colorado and Washington were the first two states to legalize recreational use in 2012, followed by Oregon, Alaska, California, Nevada, Maine, Massachusetts, Vermont, and Michigan. Washington DC also permits recreational use.

As more and more states continue to broaden their cannabis laws it is important for temporary visitors, visa holders, and lawful permanent residents to remember that possession of marijuana remains prohibited on the federal level. This means that even if you partake in recreational use in a state where it is legal, you are still in violation of federal law, which could put your status in the United States at risk. If convicted of a federal controlled substance law, or if you admit to violating a federal controlled substance law, you can also face difficulties when applying for a visa to the United States in the future.

It is also important to note that in other countries where recreational cannabis is legalized on a national level – such as Canada or South Africa – these laws do not take retroactive effect. If an individual was convicted of possession prior to legalization that individual is not absolved of their previous crime. The same goes for making admissions to possession or use of a substance prior to legalization in those countries. For example, individuals who admit to using marijuana recreationally in Canada prior to 17 October 2018 (the date recreational use was legalized) will be considered to have violated a controlled substance law and therefore inadmissible to the United States.

Even with all of this in mind, many temporary visitors in Illinois or other recreational-use states may consider the risk of harm quite low. After all, Immigration and Customs Enforcement (ICE) officers aren’t likely to be lurking outside dispensaries hoping to catch a foreigner red-handed. While that may be true, most dispensaries are required to check a photo ID before making a sale, and if a non-US citizen hands over their passport that information will get entered into a system that the Federal government does have access to. Furthermore, electronic device searches are becoming more and more common at the border, and if your phone is searched and evidence is discovered indicating use of marijuana (or any other controlled substance for that matter), you will be denied entry to the United States. Evidence can include text messages, social media postings, emails, photos/videos, or even bank details showing a transaction at a dispensary.

Although it may be tempting, and the risk may appear marginal, the consequences of getting caught by the Federal government can be severe, including deportation or future inadmissibility to the United States. For more information about inadmissibility to the US see Inadmissibility Based on a Criminal Record Involving Marijuana.

 

— Rikkilee Moser, Associate Attorney

If you would like advice regarding your criminal convictions or need assistance applying for a waiver of inadmissibility, please email [email protected] or call our office to speak to an attorney at +44 (0)20 7092 6830.