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It’s July 13, and this is your BAL Immigration Report.
“Anyone that’s actually involved in the legal cannabis industry — in other words, the actual marijuana industry — unless they’re a citizen of the United States, it’s a problem because it’s still federally illegal, even though it may be legal in the state.”
—Jeff Joseph, BAL Partner
A reminder that Form I-9 COVID-related flexibilities will end on July 31. With the end of the special measures, employers must resume physical inspection of employee eligibility documents. U.S. Immigration and Customs Enforcement will give employers a 30-day grace period, until Aug. 30, to reach compliance with document inspection requirements.
The Department of Homeland Security continues to work on a rule that would allow remote inspection of documents in some cases. The agency is currently reviewing public comments and plans to issue a final rule later this year.
USCIS launched a new self-service tool allowing benefit requestors or their authorized representatives to reschedule most biometric services appointments. Individuals who have or create a USCIS online account can now reschedule most biometric appointments without calling the agency’s Contact Center. The tool cannot be used to reschedule an appointment that has already been rescheduled two or more times, is within 12 hours or has already passed. USCIS expects the tool to increase efficiency and reduce call volume to its Contact Center.
A conversation with BAL Partner Jeff Joseph: the immigration consequences of marijuana.
BAL Immigration Report: In recent years, several states have moved to legalize marijuana. An April 2023 tally from the National Conference of State Legislatures shows that 38 states and the District of Columbia allow the use of marijuana for recreation, medical purposes or both. Still, marijuana can have serious immigration consequences even in states where it is legal. That’s because marijuana remains a Schedule I substance under federal law. BAL Partner Jeff Joseph joined us.
Joseph: There’s essentially three things you have to think about when you’re thinking about drugs and immigration. The first is, can you be deported? The second is, can you be considered inadmissible? And inadmissible means you leave the country and are trying to get back in, or you’re in the country and you’re applying for admission, for example, as a permanent resident — so an application for adjustment of status, that’s also an application for admission. It also comes up in the context of citizenship, because you have to demonstrate good moral character for purposes of citizenship. So for purposes of deportation, all drug crimes, every single one of them, makes you deportable — except for one-time conviction of simple possession of 30 grams or less of marijuana for one’s own use. So that’s the only exception to deportability for drugs.
There is no exception to inadmissibility. All drug crimes, full stop, no exceptions, make you inadmissible to the United States. There is a waiver that you can apply for, a waiver of inadmissibility for one-time simple possession of less than 30 grams of marijuana for one’s own use. There’s an open question as to whether that includes paraphernalia. So theoretically, you can have the pot, you just can’t have the pipe to smoke it, in order to be inadmissible.
And then lastly, good moral character: You have to demonstrate five years of good moral character for purposes of getting into the country as a citizen. And any drug event that takes place in that time, in addition to being potentially deportable, could also cause consequences for purposes of citizenship.
BAL: Joseph said there is also a separate ground of inadmissibility for drug trafficking.
Joseph: The interesting thing about this is it doesn’t require a conviction. It just requires that the attorney general have reason to believe you’ve engaged in drug trafficking activity, and it doesn’t matter whether that drug trafficking activity is legal in your home country. For example, in Canada, marijuana is federally legal, and so businesses can engage in the conduct of cultivating, growing, selling — all of which is considered trafficking under U.S. federal laws. So that same legal activity could make you inadmissible as a drug trafficker if you if you try to enter the United States to engage in that kind of activity.
BAL: Questions about use of marijuana or other drugs can arise in immigration application processes — even absent a conviction or arrest.
Joseph: There’s a number of ways that this comes up. One of the ways that it comes up is during a medical exam. When you apply for a green card, you have to take a medical exam. Not only are there questions about drug use, but there’s also blood tests and urine tests. If you test positive and they ask you questions about it, and you admit more than one-time casual use of marijuana, you’re inadmissible for a minimum of three years as a drug abuser or addict, which is another ground of inadmissibility potentially. So it comes up in that context.
It also comes up, as you indicated, on social media posts. The government does have access to social media. There’s questions on a lot of forms about social media handles. There’s also direct questions on a lot of these applications and forms about not only drug convictions but drug abuse, drug addiction and drug activity. So it comes up in a number of contexts.
BAL: Federal drug laws also present issues for employers in states where marijuana is legal. We asked Joseph if companies in the cannabis industry can employ foreign nationals.
Joseph: Potentially, you can bring in foreign workers, for example, to work on a hemp farm as agricultural workers. But there are very strict regulations under the farm worker provisions as to how much THC content the hemp can have. It could be used for CBD components or hemp, but it cannot have a certain amount of active THC or it’s considered illegal. So the FDA regularly tests and makes sure that there is not problems with those hemp farms. It’s a regulated industry. Anyone that’s actually involved in the legal cannabis industry — in other words, the actual marijuana industry — unless they’re a citizen of the United States, it’s a problem because it’s still federally illegal, even though it may be legal in the state. And that can come up in a number of contexts.
For example, on many green card applications, there’s something called the affidavit of support. Well, if you’re working in the marijuana industry and you have a tax record showing that you have at any point in your immigration history worked even at a legal pot shop, it could be a problem for you. Even if your sponsor who as a U.S. citizen works in the marijuana industry, and you benefit from the proceeds of that industry, they’re ineligible to sponsor you on the affidavit of support because you can’t use the proceeds from marijuana for purposes of the affidavit of support. Literally, this can come up in so many different contexts.
BAL: In general, the Biden administration has been more lenient on marijuana than past administrations. In October 2022, for example, President Biden pardoned thousands of people with federal convictions for marijuana possession. In the immigration context, Joseph said the real change has come not through the administration but through federal litigation.
Joseph: Most convictions take place under state law, and in order to be deported for a drug offense, there has to be an analogous federal offense. And there’s been a lot of successful litigation arguing that if a statute is vague as to what the drug is — and many, many states just have controlled substance offenses that say, you’re convicted of Schedule A drug or Schedule I drug, but it doesn’t specify — well, then there’s no way for the federal government to prove that that state conviction is analogous to a federal offense. In the absence of doing that, they can’t meet their burden of proof for deportation. So there’s been a lot of really good litigation all the way up to the Supreme Court in a case called Moncrieffe about when statutes are vague as to the drug specified and whether or not that would constitute a deportable offense.
BAL: The consequences of drug use and immigration has been in the news lately because of Prince Harry’s acknowledged past use of marijuana, cocaine and psychedelic mushrooms. Joseph said Prince Harry’s past drug use is not enough to get him deported from the United States, where he lives now, but could present challenges if he applies for a green card.
Joseph: For purposes of kicking someone out of the country, for purposes of deportation, you have to have an actual conviction for a drug offense. An admission of a drug crime is not enough. In other words, admitting that you committed the conduct is not enough get you kicked out of the country. For purposes of inadmissibility, however, it doesn’t require a conviction; it just requires an admission of the essential elements of the offense. So now the question becomes, we know that in his memoirs, Prince Harry has testified to prior drug use — and how does that implicate his inadmissibility into the country? We know he can’t be kicked out because he doesn’t have the conviction, as far as we know. But as far as inadmissibility, it gets a little bit fuzzy.
There’s a really old Board of Immigration appeals case called “Matter of K” that talks about what constitutes the admission of the essential elements. And essentially what it is, is that the officer who is determining your admissibility must read you each element of the inadmissible statute and then get you to admit each of those elements. So admitting to random drug use may not be enough to find him inadmissible under this Matter of K legal standard. And it may not be enough to make him have problems with his visa.
Now, that doesn’t mean that if — and I don’t know what kind of visa he’s on, but let’s assume in the future he’s going to apply for a green card, that is going to be a separate application for admission — if at that time, there’s an interview, they could ask him those questions and comply with Matter of K in order to find that he’s inadmissible. And then the question would be, what is the drug offense that he admits? And will there be a waiver available to him?
The United Kingdom Home Office announced that 2023’s second APAC Youth Mobility Scheme it will open on July 24. Travelers ages 18 to 30 from Hong Kong (with a Special Administrative Region passport), Japan, South Korea or Taiwan can apply for the scheme. Those planning to apply should review eligibility requirements for the visa before entering the ballot.
The ballot window will be open for 48 hours, until July 26. Successful applicants should receive notification via email by July 31.
Taiwan announced it will extend its trial visa-free entry program for travelers from Brunei, the Philippines and Thailand. Foreign nationals of these countries will now be able to enter Taiwan without a visa until July 31, 2024.
To be eligible for visa-free entry, travelers must submit personal information, including proof of lodging and funds, as well as contact information for their host or sponsor. These travelers are also permitted to conduct business activities while in Taiwan. Officials extended the program to strengthen relations with Southeast Asian countries and attract more visitors.
In Indonesia, the government ended COVID-19 policies for those applying for certain visas and permits. Foreign nationals applying for work and stay permits at the Ministry of Manpower are no longer required to have proof of vaccination against COVID-19, submit a statement of willingness to comply with Indonesian health policies, or have health or travel insurance covering COVID-19.
The government has not yet announced if these requirements will be lifted for single- or multiple-entry visa applicants. Indonesian authorities have also removed COVID-19 checkpoints at airports and seaports, and officials will no longer request proof of COVID vaccination upon entry.
Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.
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