Although legislation to legalize marijuana abruptly stalled late last month, it is only a matter of time before the issue is revived, perhaps as early as June of this year. In spite of this, legalization of cannabis remains a hot legislative priority for a growing number of states around the country. Perhaps with that in mind, USCIS recently issued a policy alert regarding controlled substance activity and good moral character determinations. The thrust of the bulletin essentially highlights what is often misunderstood by the public: marijuana is classified as a Schedule I controlled substances and under federal law, manufacture, cultivation, possession or distribution is prohibited. Even if possession of marijuana is legal in a state jurisdiction, this does not nullify federal immigration consequences for foreign nationals since our immigration law is federal in nature.
In the context of naturalization, violation of federal controlled substance law, including but not limited to marijuana, remains a conditional bar to establishing good moral character, which is a prerequisite for citizenship. See INA 101(f)(3) and 8 CFR 316.10(b)(2)(iii), (iv). Under Conditional Bars, the Policy Manual refers to violation of any law on controlled substances, except for simple possession of 30g or less of marijuana. This still applies even if the state where the offense occurs does not punish or prohibit the crime under state law.
This issue alone is more complicated than it seems. If the offense is for possession of 30g or less of marijuana, an exception may apply. If the offense does not fall within the exception but occurred before the five (or three, in some cases) year statutory period, the applicant may still be able to demonstrate good moral character. But even if good moral character is present, any controlled substances offense may potentially render an applicant deportable. And when it comes to drugs, the immigration law is very unforgiving. Therefore, it is imperative that any applicant with any history or incidents of controlled substances consult with an attorney prior to applying for immigration benefits, whether for permanent residence, naturalization, or any other type of status.
The above is general information only and not intended to serve as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.