For immigration purposes, it is federal law that controls, and it remains a federal offense to possess marijuana. In particular, a noncitizen who admits to an immigration official that they possessed marijuana can be found inadmissible, denied entry into the United States, or have their application for lawful status or naturalization denied. Depending on the circumstances, it can make a lawful permanent resident deportable.

This is true even if the conduct was permitted under state law, the person never was convicted of a crime, and the conduct took place in their own home. State laws legalizing marijuana provide many benefits, but unfortunately, they also are a trap for unwary immigrants. Believing that they have done nothing wrong, immigrants may readily admit to officials that they possessed marijuana.

In some states, such as Washington, ICE, CIS, and/or CBP agents have aggressively asked noncitizens if they ever have possessed marijuana, in an attempt to find people inadmissible. In other states, such as California, CIS does not appear to be doing this, although CBP officials at border and internal checkpoints are.

State laws, like the laws in Ohio, that legalize marijuana fall into two categories. State medical marijuana laws typically require the person to have a doctor’s order. They permit buying, owning, using, and often growing a small amount of marijuana, but do not permit giving away, selling (without a license), or other conduct. State recreational marijuana laws don’t require a doctor’s order, but do require the person to be an adult. With some restrictions, they may permit buying, owning, using, growing, and giving away a small amount of marijuana, but not selling (without a license) or other conduct. States may also license businesses and other entities, and their employees, to engage in regulated commerce involving marijuana.

Regardless of state law, marijuana remains a federal Schedule I controlled substance. As such it can cause heavy penalties for immigrants. Just admitting to DHS that one possessed marijuana, or just being employed in the legitimate cannabis industry, can make a noncitizen inadmissible and conditionally (for a certain time period) barred from establishing good moral character – even if that conduct was permitted under state law.

Example: Carol uses medical marijuana according to her doctor’s instructions, in her own home. This is all legal in her state. But if she admits to DHS that she has done this, she can be found inadmissible and/or conditionally barred from establishing good moral character for admitting a federal controlled substance offense. This is true despite the fact that she never was convicted, she did not use marijuana on federal property, and she used it in accordance with the law of her state.

Example: Silvia used to work in the accounting department of Cannabis, Inc., a major corporation that is legal and duly licensed in her state. She pays state and federal income taxes like any lawful worker. She has never tried marijuana. If she provides her place of employment (for example, she lists it on her I-485 or N-400), DHS will say that it has “reason to believe” she is a drug trafficker. Or, they may ask her questions about the employment and have her “admit” to a federal offense. She can be found inadmissible and/or conditionally barred from establishing good moral character.

Example: Martin is an LPR who uses recreational marijuana legally in his home in Colorado. If he admits to DHS that he has used marijuana more than once, he could be conditionally barred from establishing good moral character required for naturalization, but he would not be deportable. As an LPR remaining within the United States, the only penalty for legal use of marijuana is that he must stop using it for some years before he can naturalize.

But say Martin visits his father in Mexico for a few days, and upon return a border officer finds a photo on his phone showing him in a marijuana shop. She carefully questions Martin, who admits that he uses marijuana sometimes “because it’s legal.” Now Martin is subject to the grounds of inadmissibility, and he is inadmissible. Unless he qualifies for and is granted some relief, like LPR cancellation, he will lose his green card and be permanently barred from the U.S. Or, if Martin had simply re-entered the U.S. after his with no problem, but years later immigration authorities discovered that he was using marijuana before that trip, they might claim that he is deportable for having been inadmissible at last entry (although Martin may have a defense). 

The advice is:

• Stay away from marijuana until you are a U.S. citizen.
• If you truly need medical marijuana, get a legal consult.
• Do not carry marijuana, a medical marijuana card, or marijuana stickers, t-shirts, etc.
• Remove any text or photos relating to marijuana from your social media and phone.
• If you have used marijuana, or worked in the industry, get a legal consult before leaving the United States or applying for naturalization or immigration status. 
• Never discuss conduct involving marijuana with immigration, border, consular, or law enforcement authorities -- unless your immigration attorney has advised that this is safe.