As a number of states and the District of Columbia have moved to permit possession, use and sale of marijuana for both medicinal and recreational purposes and the business of legalized cannabis distribution has grown exponentially, federal law banning such activity remains unchanged. Deeming the trend in state law irrelevant, federal immigration authorities have in fact moved in the opposite direction. Last month, on April 19, US Citizenship and Immigration Services announced policy guidance “to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.” (uscis-issues-policy-guidance-clarifying-how-federal-controlled-substances-law-applies-naturalization-determinations)

Immigration regulations impose a requirement on applicants to become U.S. citizens to establish “good moral character” (GMC) in order to be approved to take the oath of naturalization. 8 C.F.R. § 316.10(a). As a general matter, violations of the Controlled Substance Act (CSA) trigger a “conditional bar,” a non-temporary but waiveable bar to naturalization. Chapter 5, Section C of the USCIS Policy Manual, which provides guidance to immigration officers on the application of the controlled substances bar, has been updated to state that the conditional GMC bar applies regardless of state law decriminalizing marijuana.

This guidance asserts that marijuana remains classified as a Schedule I controlled substance under the CSA, further noting that Schedule I substances do not have any “accepted medical use pursuant to the CSA.” Marijuana offenses under federal law arise with possession, production or distribution of the substance. Moreover, such activity remains a crime under federal law regardless of the legality of the activity under state law, and regardless of whether the use of marijuana is for recreational or medicinal purposes. USCIS Policy Manual, Chapter 5 Section C.3.

Depending on the specific facts of a naturalization case, such activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC. The Policy Manual does recognize an exception to the conditional bar if the violation established was for a single offense of simple possession of 30 g or less of marijuana. This exception also extends to paraphernalia offenses involving controlled substances as long as the paraphernalia offense is related to simple possession of 30 g or less of marijuana.

Additionally, the Policy Manual guidance likely signals a stricter approach not just for naturalization applicants, but for applicants for temporary visas and green cards as well.

Applicants for naturalization, and their attorneys or representatives should recognize that a conviction for a marijuana-related CSA violation could well operate as a long-term bar to naturalization. Admission of marijuana use – even in the absence of a conviction, and even if relatively infrequent and/or for medicinal purposes — can trigger the conditional bar to establishing good moral character and thereby block an otherwise qualified candidate from attaining U.S. citizenship.