On October 17, 2018, Canada became the second country behind Uruguay to legalize adult recreational cannabis use, while the U.S. federal law on the topic remains stuck in a political rut.

This development should increase the number of Canadian nationals facing potential bars to admission to the U.S. In most cases, the rumored “permanent bars” to admission to the U.S. potentially triggered by investment or involvement in the cannabis industry are subject to discretionary waivers approved by the U.S. Customs and Border Protection (CBP) Admissibility Review Office (ARO).

On October 9, CBP posted a statement clarifying that a Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, who is coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. Thus, while the clarification is useful for workers and investors in the legal Canadian cannabis industry, CBP is only creating a potential path for legal admission to the U.S. when they plan to enter the U.S. for purposes not related to the business.

What’s the issue?

Notwithstanding that 31 U.S. states, the District of Columbia, Guam, and Puerto Rico allow for some form of medical marijuana and cannabis program decriminalization, cannabis remains a prohibited Schedule I controlled substance under the U.S. Controlled Substances Act. U.S. federal law criminalizes the manufacture, distribution, dispensing, possession, importation, and exportation of any controlled substance, including marijuana. It is also a federal crime to sell or import drug paraphernalia.

How are potential permanent bars to admission to the U.S. triggered?

Of particular note is the large scope of §212(a)(2)(C) of the Immigration and Nationality Act (INA) regarding drug trafficking, which renders ineligible for admission any alien known or suspected of past or present illicit trafficking of any controlled substance or listed chemical or any alien who is or has knowingly collaborated with others in such illicit trafficking.

As to drug use, the INA provides that a foreign national who is in a violation of any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance may be found inadmissible or ineligible to receive a visa. An additional ground of inadmissibility in the INA pertains to drug abusers and drug addicts, who are deemed to have a Class A medical condition. It seems to follow that routine use of even legalized cannabis is likely to result in a temporary bar of admission.

How can bars be potentially waived?

These bars can be subject to nonimmigrant and immigrant visa waivers depending on the ground of inadmissibility. Even those subject to an illicit trafficking ground of inadmissibility may qualify for a nonimmigrant waiver. Canadians may present an I-192 nonimmigrant waiver application form with supporting documents at certain ports of entry or pre-clearance locations for the U.S. in advance of an application for admission to the U.S. Each location has its own procedures for submission of the waiver. The current discretionary processing time is around six to seven months. CBP’s Admissibility and Review Office (ARO) adjudicates the applications and they are specific to the particular visa category requested. The filing fee is $930.

The ARO considers a number of factors in making its determination including the seriousness, recentness, and type of offense as well as the number of offenses and any evidence of rehabilitation/reformation. Waiver applications should be expected to be difficult and time consuming to obtain.

If you are an employer in the cannabis industry, how are you planning to manage this issue for your employees? What are your concerns? We welcome your feedback and questions on this important issue. Please post your comments on our LinkedIn page at: Dickinson Wright Canada, on Twitter at: @DWrightCanada or on our personal LinkedIn pages at https://www.linkedin.com/in/chantalcipriano/ and https://www.linkedin.com/in/kathleencwalkerimmigrationlaw/

About the Authors:

Chantal Cipriano is an Associate in the Toronto office of Dickinson Wright. Her practice primarily focuses on advising clients in regards to compliance, governance, regulatory and due diligence requirements integral to the gaming industry. Chantal also assists cannabis companies with risk assessments relating to Canada and US cross border operations, and advises on a variety of corporate and securities law matters.

Kathleen Campbell Walker is a Member at the Dickinson Wright El Paso Office. She is known internationally as a leader in the field of immigration law.  She is a former national president and general counsel of the American Immigration Lawyers Association. Ms. Walker has testified multiple times before Congress on border security and immigration policy.  Her practice focuses on cross-border and business immigration, immigration compliance and audits, consular processing, waivers, and investment related immigration matters.

For more information on other cannabis and immigration matters contact:

Kevin Weber, Immigration Lawyer, Dickinson Wright, Toronto Office

Dan Ujczo, International Trade Lawyer, Dickinson Wright, Columbus Ohio Office

Suzanne Sukkar, Immigration Lawyer, Dickinson Wright, Ann Arbor Office.