Investors, Workers in Canada's Legal Cannabis Industry Face Lifetime Bar From U.S. Entry

The fact that U.S. federal law continues to list marijuana ("all parts of the plant Cannabis sativa L.") as a controlled substance creates problems for travelers from Canada.

** LEGAL UPDATE **

In mid-October of 2018, Canada becomes the world’s first and only major industrialized nation to legalize retail sales of cannabis products. Many U.S. states have also legalized use or sales of marijuana in various forms. Thus it's reasonable to assume that Canadian citizens involved in the cannabis industry will wish to visit the United States, whether for business, pleasure, or other, unrelated reasons.

The fact that U.S. federal law continues to list marijuana ("all parts of the plant Cannabis sativa L.") as a controlled substance, however, creates a problem for such travel. (For a full list of applicable controlled substances, see the Federal Controlled Substances Act at 21 U.S.C. § 802.)

Under U.S. immigration law, an applicant for a visa or green card can be denied and refused entry as "inadmissible" based on basically everything having to do with drug use or sales.

For starters, under Immigration and Nationality Act Section 212(a)(1)(A)(iii) and (iv), the grounds of inadmissibility include:

  • a current physical or mental disorder with associated harmful behavior
  • a past physical or mental disorder with associated harmful behavior if the harmful behavior is likely to recur or to lead to other harmful behavior in the future, and
  • a problem with drug abuse or addiction (medically called “dependence”).

In addition, under Immigration and Nationality Act Section 212(a)(2)(A)(i)(II), possession of marijuana for any purpose, including personal use, is a criminal ground of inadmissibility (because it violates the Controlled Substances Act). Even an applicant who has not been convicted of a marijuana offense is inadmissible if he or she admits having committed acts that constitute the federal offense of possessing marijuana. There is, however, a possible waiver for simple possession of 30 grams or less of marijuana.

As if the above weren't enough, under I.N.A. Section 212(a)(2)(C), traffickers in (sellers and distributors of) illicit drugs are inadmissible to the United States. One doesn't need a conviction for a crime involving drug trafficking, either. The U.S. government's "reason to believe" in one's involvement is enough. And the inadmissibility bar also applies to anyone who has knowingly aided, abetted, assisted, conspired, or colluded with drug traffickers.

Unlike many grounds of inadmissibility, no waiver is possible for drug-related offenses.

And now for the kicker: According to a report by Politico, "The U.S. Customs and Border Protection agency will continue to apply long-standing U.S. federal laws and regulations that treat marijuana as a banned substance—and participants in the cannabis industry as drug traffickers—who are inadmissible into the U.S."

The officials quoted didn't sound like they planned to bend over backwards to search out people who are inadmissible on this basis, but people seeking U.S. entry can't lie to government officials when asked a direct question, either. All it takes is one officer asking a probing question to put a potentially permanent mark of inadmissibility on a Canadian citizen's immigration record, thus effectively blocking all future travel into the United States.

Effective Date: October 17, 2018