With the change in presidential administration, immigration law issues have dominated the news cycle recently. There is no doubt that immigration enforcement issues are a priority for this administration. Accordingly, employers in every sector should take a step back to ensure that their employment practices conform to immigration laws. For employers of state-legal cannabis businesses, this remains yet another area where the conflict between federal law and states that have legalized and regulated cannabis creates challenges.
While more and more states legalize the use, manufacture, distribution, etc. of marijuana, federal law continues to classify it (also spelled “marihuana” in the statute) as a Schedule I controlled substance. Under the Immigration and Nationality Act (INA) a non-U.S. citizen is not eligible to enter or remain in the country for a conviction of (or admitting to committing) "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, of a foreign country relating to a controlled substance."
Lawful permanent residents (LPRs), also known as “green card” holders, are deportable for a conviction under these statutes (with an exception for one conviction for possession of less than 30 grams). For U.S. immigration purposes, a conviction is defined as a formal judgment of guilt entered by a court whether through a jury verdict or a guilty plea.
The U.S. Code defines trafficking controlled substances as follows:
The term "narcotics trafficking" means any illicit activity to cultivate, produce, manufacture, distribute, sell, finance, or transport narcotic drugs, controlled substances, or listed chemicals, or otherwise endeavor or attempt to do so, or to assist, abet, conspire, or collude with others to do so.
This definition can cover:
anyone engaged in the planting, fertilizing, tending and harvesting of marijuana plants;
those who sell it;
those who invest in these businesses;
those who ship it (including truck drivers and other delivery personnel)
This would include those in the U.S. on H-2A (temporary agricultural) visas.
While there appears to be widespread use of H-2A workers in the cannabis industry, this would most likely be considered as trafficking by immigration officials under the definition above. If so, the workers would probably be denied any future U.S. visas and the employers could be subject to investigations and fines. This would be due to the fact these visa petitions would have been denied if the involvement in cannabis had been disclosed during the petition process. This could subject the employers to criminal fraud charges and monetary penalties if they were to be found to have intentionally mislead immigration authorities and/or misrepresented the nature of the employment.
Involvement in these activities can have other significant (and detrimental) consequences for those non-U.S. citizens pursuing temporary visas, green cards and other U.S. immigration benefits.
For example, a person who is a nonimmigrant—i.e., someone who is not a U.S. lawful permanent resident and attempts to apply for admission to the U.S. as a visitor or temporary worker and possesses marijuana or has a conviction for marijuana—can, with limited exceptions, be denied entry. Similarly, an LPR can be denied admission to the U.S. for the same reason(s).
Another example involves those who are applying for visas at a U.S. consulate or embassy outside the U.S. Our consulates are administered by the U.S. Department of State, which publishes the Foreign Affairs Manual (FAM) to provide guidance to consular officers. Its language in this area is even more expansive than federal statutes:
Any alien who the consular officer or the Attorney General knows or has reason to believe-
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical … or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical,
or
endeavored to do so…
is inadmissible (to the U.S).
This “reason to believe” standard provides officers with almost limitless discretion in denying temporary visa and permanent, i.e., “green card” applications, based on virtually any suggestion of involvement in the cannabis industry at all, since the FAM only requires “a probability, supported by evidence, that the applicant is or has been engaged in trafficking.”
These issues continue to confront LPRs who apply for naturalization as U.S. citizens. These applicants are required to show, among other things, good moral character (GMC). The U.S. Citizenship and Immigration Services (USCIS) Policy Manual states explicitly:
An applicant cannot establish good moral character (GMC) if he or she has violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. This includes conspiring to violate or aiding and abetting another person to violate such laws or regulations.
This applies to a conviction for or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law. In addition, this applies to a conviction or admission that the applicant has been a trafficker in a controlled substance. Benefitting financially from a spouse or parent’s trafficking is also a conditional bar.
The “statutory period” mentioned above is either the three years before applying for citizenship if the person obtained his/her green card through marriage to a U.S. citizen or five years if they did so through their employment.
With this being said, the immigration service still has very broad discretion on this topic.
Lastly, we recommend that workers in the cannabis industry in the U.S. be limited to U.S. citizens— and not individuals who hold nonimmigrant/temporary visas, including but not limited to H-2A temporary agricultural workers and LPRs because such workers are not permitted to work for businesses that involve controlled substances. Additionally, employers who employ workers who are not U.S. citizens in the cannabis industry are subject to a range of enforcement penalties, details of which are outside the scope of this article.
As a friendly reminder, employers are required by federal law to properly complete a USCIS Form I-9 within 3 days of hire for every individual they hire for employment in the United States. This universal requirement applies to state-legal cannabis businesses. Not only is Form I-9 required by federal law, it is the best permitted tool for employers to use to obtain immigration-related information from prospective employees.
Conclusion
The best practice for individuals who are not U.S. citizens or lawful permanent residents is avoid any involvement with cannabis at all times to maximize their ability to qualify for and to receive U.S. immigration benefits. By the same token, employers in the cannabis industry should consider avoiding hiring foreign nationals. While it might have no effect on the operations of the company, it can have significant consequences for the person due the significant effect this involvement can have on their immigration status and ability to enter and/or remain in the United States.
Individuals and businesses who have questions concerning the criminal and immigration consequences related to cannabis are best advised to consult with and retain a criminal attorney and an immigration attorney who specialize in the intersection of the complex worlds of U.S. immigration law and criminal law.
James Prappas is a member in Dykema’s Houston office and part of the firm’s Immigration and Labor and Employment groups, focusing on employment-based immigration. He advises employers across industries on U.S. immigration matters, counseling companies on maintaining compliance while meeting talent needs in complex regulatory environments. With more than 30 years of experience, James helps clients navigate evolving immigration policies, including those affecting cannabis-related businesses and professionals.
Jim Aldrich is a member in Dykema’s Bloomfield Hills office and part of the firm’s Immigration and Labor and Employment groups. He advises clients on employment-based immigration matters, including visa strategies, green card processes, and compliance with federal regulations. He works with companies across sectors, including cannabis, to support workforce mobility and manage immigration-related risks in a shifting legal landscape.
