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The Hidden Immigration Risks of Cannabis Employment: What Employers and Workers Need to Know

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With the change in presidential administration, immigration law issues have dominated the news cycle recently. There is no doubt that immigration enforcement issues are a priority for this administration. Accordingly, employers in every sector should take a step back to ensure that their employment practices conform to immigration laws. For employers of state-legal cannabis businesses, this remains yet another area where the conflict between federal law and states that have legalized and regulated cannabis creates challenges.

While more and more states legalize the use, manufacture, distribution, etc. of marijuana, federal law continues to classify it (also spelled “marihuana” in the statute) as a Schedule I controlled substance. Under the Immigration and Nationality Act (INA) a non-U.S. citizen is not eligible to enter or remain in the country for a conviction of (or admitting to committing) “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, of a foreign country relating to a controlled substance.”

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Lawful permanent residents (LPRs), also known as “green card” holders, are deportable for a conviction under these statutes (with an exception for one conviction for possession of less than 30 grams).  For U.S. immigration purposes, a conviction is defined as a formal judgment of guilt entered by a court whether through a jury verdict or a guilty plea.

The U.S. Code defines trafficking controlled substances as follows:

The term “narcotics trafficking” means any illicit activity to cultivate, produce, manufacture, distribute, sell, finance, or transport narcotic drugs, controlled substances, or listed chemicals, or otherwise endeavor or attempt to do so, or to assist, abet, conspire, or collude with others to do so.

This definition can cover:

  • anyone engaged in the planting, fertilizing, tending and harvesting of marijuana plants;

  • those who sell it;

  • those who invest in these businesses;

  • those who ship it (including truck drivers and other delivery personnel)

This would include those in the U.S. on H-2A (temporary agricultural) visas. 

While there appears to be widespread use of H-2A workers in the cannabis industry, this would most likely be considered as trafficking by immigration officials under the definition above. If so, the workers would probably be denied any future U.S. visas and the employers could be subject to investigations and fines. This would be due to the fact these visa petitions would have been denied if the involvement in cannabis had been disclosed during the petition process. This could subject the employers to criminal fraud charges and monetary penalties if they were to be found to have intentionally mislead immigration authorities and/or misrepresented the nature of the employment.

Involvement in these activities can have other significant (and detrimental) consequences for those non-U.S. citizens pursuing temporary visas, green cards and other U.S. immigration benefits. 

For example, a person who is a nonimmigrant—i.e., someone who is not a U.S. lawful permanent resident and attempts to apply for admission to the U.S. as a visitor or temporary worker and possesses marijuana or has a conviction for marijuana—can, with limited exceptions, be denied entry. Similarly, an LPR can be denied admission to the U.S. for the same reason(s).

Another example involves those who are applying for visas at a U.S. consulate or embassy outside the U.S. Our consulates are administered by the U.S. Department of State, which publishes the Foreign Affairs Manual (FAM) to provide guidance to consular officers. Its language in this area is even more expansive than federal statutes:

Any alien who the consular officer or the Attorney General knows or has reason to believe

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical … or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical,

or       

endeavored to do so…

is inadmissible (to the U.S).

This “reason to believe” standard provides officers with almost limitless discretion in denying temporary visa and permanent, i.e., “green card” applications, based on virtually any suggestion of involvement in the cannabis industry at all, since the FAM only requires “a probability, supported by evidence, that the applicant is or has been engaged in trafficking.”

These issues continue to confront LPRs who apply for naturalization as U.S. citizens. These applicants are required to show, among other things, good moral character (GMC). The U.S. Citizenship and Immigration Services (USCIS) Policy Manual states explicitly:

An applicant cannot establish good moral character (GMC) if he or she has violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. This includes conspiring to violate or aiding and abetting another person to violate such laws or regulations.

This applies to a conviction for or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law. In addition, this applies to a conviction or admission that the applicant has been a trafficker in a controlled substance. Benefitting financially from a spouse or parent’s trafficking is also a conditional bar.

The “statutory period” mentioned above is either the three years before applying for citizenship if the person obtained his/her green card through marriage to a U.S. citizen or five years if they did so through their employment.

With this being said, the immigration service still has very broad discretion on this topic.

Lastly, we recommend that workers in the cannabis industry in the U.S. be limited to U.S. citizens— and not individuals who hold nonimmigrant/temporary visas, including but not limited to H-2A temporary agricultural workers and LPRs because such workers are not permitted to work for businesses that involve controlled substances.  Additionally, employers who employ workers who are not U.S. citizens in the cannabis industry are subject to a range of enforcement penalties, details of which are outside the scope of this article.

As a friendly reminder, employers are required by federal law to properly complete a USCIS Form I-9 within 3 days of hire for every individual they hire for employment in the United States. This universal requirement applies to state-legal cannabis businesses. Not only is Form I-9 required by federal law, it is the best permitted tool for employers to use to obtain immigration-related information from prospective employees.   

Conclusion
The best practice for individuals who are not U.S. citizens or lawful permanent residents is avoid any involvement with cannabis at all times to maximize their ability to qualify for and to receive U.S. immigration benefits. By the same token, employers in the cannabis industry should consider avoiding hiring foreign nationals. While it might have no effect on the operations of the company, it can have significant consequences for the person due the significant effect this involvement can have on their immigration status and ability to enter and/or remain in the United States.

Individuals and businesses who have questions concerning the criminal and immigration consequences related to cannabis are best advised to consult with and retain a criminal attorney and an immigration attorney who specialize in the intersection of the complex worlds of U.S. immigration law and criminal law. 

James Prappas is a member in Dykema’s Houston office and part of the firm’s Immigration and Labor and Employment groups, focusing on employment-based immigration. He advises employers across industries on U.S. immigration matters, counseling companies on maintaining compliance while meeting talent needs in complex regulatory environments. With more than 30 years of experience, James helps clients navigate evolving immigration policies, including those affecting cannabis-related businesses and professionals.

Jim Aldrich is a member in Dykema’s Bloomfield Hills office and part of the firm’s Immigration and Labor and Employment groups. He advises clients on employment-based immigration matters, including visa strategies, green card processes, and compliance with federal regulations. He works with companies across sectors, including cannabis, to support workforce mobility and manage immigration-related risks in a shifting legal landscape.

 

 



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Trump’s VA Head Visits Psychedelics Research Center, Reiterating ‘Promise’ To Explore Benefits For Military Veterans

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The head of the U.S. Department of Veterans Affairs (VA) visited a facility conducting research on psychedelics this week, reiterating that it’s his “promise” to advance research into the therapeutic potential of the substances—even if that might take certain policy changes within the department and with congressional support.

In a video shared on X on Tuesday, VA Secretary Doug Collins talked about his commitment to pursuing clinical trials into substances such as MDMA—standing alongside Rachel Yehuda, the director of mental health at VA’s James J. Peters Veterans Affairs Medical Center who has overseen and advocated for psychedelics research.

“I told you all along that we are looking at psychedelics. We’re looking at anything to help our veterans,” Collins said, while stressing that he acknowledges “there’s no silver bullet for the things we have for trauma and our stress and the incidences of childhood.”

“These are all things that come out in our veterans as they come back from war zones, but also just in everyday life. But you know, sitting here with Rachel and the doctors here, I have found that there’s some things that are working,” the secretary said. “I promised you that we’re going to look into this, and we’re making changes to make it even better so we can make it more available.”

“It’s going to take some change in the VA. It’s going to take some changes in Congress. But it’s a thing that I have said we want to do because we want to take care of veterans,” Collins said, noting that the room they filmed the video in is one of the facilities where MDMA clinical trials are currently underway.

“These are things we’re going to continue. I promise you, we’re going to do it,” he said, telling Yehuda to “keep doing what you’re doing because it is meaningful to our veterans, and I want to thank you.”

Yehuda shared the secretary’s post and said she was pleased to meet Collins and “show what we’ve built at [VA] for our veterans.”

“We’re excited about the expansion of our [Parsons Research Center for Psychedelic Healing] at the VA and the two new studies that have just begun here with MDMA and psilocybin,” she said.

Collins’s visit to the psychedelics research center comes about a month after the VA secretary met with a military veteran who’s become an advocate for psilocybin access to discuss the therapeutic potential of psychedelic medicine for the veteran community.

Collins also briefly raised the issue in a Cabinet meeting with President Donald Trump in April.

The secretary also disclosed in April that he had an “eye-opening” talk with U.S. Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. about the therapeutic potential of psychedelic medicine. And Collins said he’s open to the idea of having the government provide vouchers to cover the costs of psychedelic therapy for veterans who receive services outside of VA as Congress considers pathways for access.

During a recent Senate committee hearing, he separately reiterated his commitment to exploring the efficacy of psychedelic therapy to address serious mental health conditions that commonly afflict military veterans.

Meanwhile last month, bipartisan congressional lawmakers asked the VA head to meet with them to discuss ways to provide access to psychedelic medicine for military veterans.

In a letter sent to Collins, Reps. Lou Correa (D-CA) and Jack Bergman (R-MI)—co-chairs of the Congressional Psychedelic Advancing Therapies (PATH) Caucus—said they were “encouraged by your recent remarks about the importance of pursuing research into psychedelic treatments and other alternative treatments to improve Veterans’ care.”

Correa and Bergman separately introduced a bill in April to provide $30 million in funding annually to establish psychedelics-focused “centers for excellence” at VA facilities, where veterans could receive novel treatment involving substances like psilocybin, MDMA and ibogaine.

Bergman has also expressed optimism about the prospects of advancing psychedelics reform under Trump, arguing that the administration’s efforts to cut spending and the federal workforce will give agencies “spines” to tackle such complex issues.


Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.


Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

In December, VA separately announced that it’s providing $1.5 million in funding to study the efficacy of MDMA-assisted therapy for veterans with PTSD and alcohol use disorder (AUD).

Last year, VA’s Yehuda also touted an initial study the agency funded that produced “stunning and robust results” from its first-ever clinical trial into MDMA therapy.

In January, former VA Under Secretary for Health Shereef Elnahal said that it was “very encouraging” that Trump’s pick to have Kennedy lead HHS has supported psychedelics reform. And he hoped to work with him on the issue if he stayed on for the next administration, but that didn’t pan out.

Most Marijuana Consumers Oppose Trump’s Cannabis Actions So Far, But Rescheduling Or Legalization Could Bolster Support, Poll Shows

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Lawmakers Could Reschedule Marijuana With ‘Greater Speed And Flexibility’ Than Administration Officials, Congressional Researchers Say

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Amid a stalled marijuana rescheduling process that’s carried over from the last presidential administration, congressional researchers are reiterating that lawmakers could enact the reform themselves with “greater speed and flexibility” if they so choose, while potentially avoiding judicial challenges.

In an “In Focus” brief published by the Congressional Research Service (CRS) last week, analysts provided an overview of the different mechanisms through which scheduling actions can be implemented, noting the limitations of the process that the Biden administration initiated—and that the Trump administration has since inherited—to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

“There are two ways in which substances can be scheduled under the CSA: Congress can schedule substances by enacting legislation, or the Attorney General (in conjunction with the U.S. Department of Health and Human Services, or HHS) can schedule substances via an administrative process laid out in the CSA,” CRS said.

For this report, which is an update to an earlier analysis CRS put out last year, researchers detailed various instances where Congress has stepped in and made a scheduling decision—such as the federal legalization of hemp under the 2018 Farm Bill.

“Congress placed numerous substances in Schedules I through V when it enacted the CSA in 1970,” it says. “Since the CSA’s enactment, most subsequent scheduling changes have been made by DEA via the rulemaking process, but Congress has at times enacted legislation to schedule controlled substances or change the status of existing controlled substances.”

“There are several reasons why Congress might decide to schedule or reschedule substances via legislation,” it says. “For instance, compared to administrative scheduling, legislative scheduling may offer greater speed and flexibility.”

“Administrative scheduling under the CSA proceeds via formal rulemaking, which generally takes months or years to complete. In making scheduling decisions, DEA is required by statute to make certain findings with respect to each substance’s potential for abuse and accepted medical use,” it continues. “DEA scheduling orders (other than temporary scheduling orders) are subject to judicial review, including consideration of whether the agency properly applied the relevant statutory standards.”

To that point, it did take 11 months for HHS under the Biden administration to complete its review into cannabis and make an initial rescheduling recommendation. DEA then completed a separate review before the Justice Department formally proposed moving marijuana to Schedule III—but even then, there have been months of delay in the administrative hearing process to potentially finalize the rule.

Congress, on the other hand, could reschedule or deschedule marijuana more quickly and with a lower threat of a judicial challenge, CRS said.

“Congress is not bound by the CSA’s substantive or procedural requirements,” the report says. “This means that it can schedule a substance immediately, regardless of whether the substance meets the statutory criteria. While scheduling legislation may also be challenged in court, the scope of judicial review of legislation is typically more limited than judicial review of regulations.”

It also says legislative action “may be the only way to permanently schedule large classes of substances” such as fentanyl-related substances, given the intensive statutory requirements imposed on DEA under the CSA.

“Relatedly, the CSA provides DEA with limited options for regulating controlled substances,” CRS said. “The CSA established Schedules I-V, with each schedule carrying a defined set of regulatory controls and penalties for unauthorized activities. If DEA decides to control a substance under the CSA, it must place the substance in one of the existing schedules.”

“The agency has asserted some authority to tailor controls to specific substances, but it cannot create new schedules or implement regulations or exceptions from control that are not authorized under the CSA. If Congress wishes to regulate a controlled substance in a way that does not fit within the existing CSA framework, or allow DEA to do so, it must enact legislation.”

Additionally, the report notes that while DEA is bound to consider certain international treaty obligations when it comes to drug scheduling, those same commitments “do not prevent Congress from exercising its constitutional authority to enact new laws, even when doing so might cause the United States to violate its treaty obligations.”

Meanwhile, last month a Senate committee advanced the confirmation of Terrance Cole to become the administrator of DEA amid the ongoing review of a marijuana rescheduling proposal that he’s refused to commit to enacting.

Cole—who has previously voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth—said he would “give the matter careful consideration after consulting with appropriate personnel within the Drug Enforcement Administration, familiarizing myself with the current status of the regulatory process, and reviewing all relevant information.”

However, during an in-person hearing before the Judiciary Committee in April, he said examining the rescheduling proposal will be “one of my first priorities” if he was confirmed for the role, saying it’s “time to move forward” on the stalled process—but again without clarifying what end result he would like to see.

“I’m not familiar exactly where we are, but I know the process has been delayed numerous times—and it’s time to move forward,” he said at the time. “I need to understand more where [agencies] are and look at the science behind it and listen to the experts and really understand where they are in the process.”

Cole also said he feels it’s appropriate to form a “working group” to look at the federal-state marijuana law disconnect in order to “stay ahead of it.”

DEA recently notified an agency judge that the proceedings are still on hold—with no future actions currently scheduled. The matter sat without action before an acting administrator, Derek Maltz, who has called cannabis a “gateway drug” and linked its use to psychosis. Maltz has since left the position.

Most Marijuana Consumers Oppose Trump’s Cannabis Actions So Far, But Rescheduling Or Legalization Could Bolster Support, Poll Shows

Photo courtesy of Chris Wallis // Side Pocket Images.

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Trump’s Pollster Says Texas Hemp Ban Bill Faces ‘Bipartisan Opposition’ From Voters As Governor Nears Deadline To Act

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Texas Democratic and Republican voters are unified in their opposition to a bill on the governor’s desk that would ban consumable hemp products with any trace of THC, according to a new poll from a GOP pollster affiliated with President Donald Trump.

As Gov. Greg Abbott (R) weighs the controversial proposal—which advocates and stakeholders say would effectively decimate the state’s hemp industry—the poll from the firm Fabrizio, Lee & Associates found the measure is opposed across party lines. A majority of Democrats (80 percent) and independents (66 percent), as well as a plurality of Republicans (44 percent) said they don’t want the governor to sign it.

“When given a head-to-head choice, 7-in-10 Texas voters say they want hemp-derived consumable THC to remain legal in Texas with strict regulations like age restrictions and warning labels, while only 16 percent want it to be banned outright,” the polling memo says. “Republicans want hemp to remain legal by a substantial 59 percent-23 percent margin, with even bigger shares of Independents and Democrats choosing remain legal with regulations over an outright ban.”

In addition to the 59 percent of GOP voters who want hemp to stay legal in a separate question, 83 percent of Democrats and 73 percent of independents said the same.

There was notably high awareness of the bill among voters, with 52 percent of Texans saying they’ve seen, read or heard about the hemp ban proposal.

Asked whether their understanding of the legislation made them “more or less favorable toward the Texas State Legislature,” 57 percent said it left them feeling less favorable, compared to just 6 percent who said more favorable.

“Texas voters across party lines want hemp to remain legal and clearly oppose Governor Abbott signing the bill banning hemp into law,” the polling firm said. “A narrow majority have already heard about the ban passing the state house, and it’s hurting the legislature’s image and could cost them in the ballot box. The Governor can avoid the same fate and get credit across the political spectrum by vetoing this unpopular bill.”

The survey involved interviews with 600 registered Texas voters from May 28-29, with a +/-4 percentage point margin of error.

Earlier this year, Fabrizio, Lee & Associates also polled Americans on a series of broader marijuana policy issues. Notably, it found that a majority of Republicans back cannabis rescheduling—and, notably, they’re even more supportive of allowing states to legalize marijuana without federal interference compared to the average voter.

Tony Fabrizio, the polling firm’s principal, served as pollster for Trump’s 2016 and 2024 presidential campaigns.

On the Texas hemp issue, the governor still hasn’t made a decision on the bill.

“I’ll tell you this: Listen, there are meaningful positions and concerns on both sides of the issue, and I’ll look into all of those and evaluate all of those,” he told reporters during a Q & A session on Monday following a bill signing ceremony for an unrelated measure.

That largely echoes comments Abbott made earlier this month, when he said SB 3 “is one of literally more than a thousand bills on my desk—all of which need my careful consideration and evaluation.”

Also this month, hemp advocates and stakeholders delivered more than 100,000 petition signatures asking Abbott to veto the measure. Critics of the bill have said the industry—which employs an estimated 53,000 people—would be effectively eliminated if the measure becomes law.


Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.


Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

Texas lawmakers legalized the sale of consumable hemp in 2019, following enactment of the 2018 federal Farm Bill that Trump signed, which legalized the plant nationwide. That’s led to an explosion of products—including edibles, drinks, vape products and cured flower—sold by an estimated 8,000 retailers.

Military veterans advocates, including Texas Veterans of Foreign Wars, have also called on the governor to veto the hemp ban, saying it “would cause irreversible harm to communities across the state.”

Farmers have also said the prohibition would devastate a key sector of the state’s agriculture industry.

Meanwhile, a recent poll commissioned the Texas Hemp Business Council (THBC) found that Texas Republican primary voters oppose the proposal to ban hemp products containing THC.

Read the polling memo on the Texas hemp ban below:

Trump’s VA Head Visits Psychedelics Research Center, Reiterating ‘Promise’ To Explore Benefits For Military Veterans

Photo courtesy of Brendan Cleak.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

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