from BORDERS: Thoughts of a Cross-Border Advisor (27 Nov 2012) -- "Marijuana, Green Cards, and Cross-Border Planning"

By John Flecke, JD, CFP® posted 06-19-2013 09:04


For generations, immigrants to the U.S. have undergone a medical exam. For most, the exam has been an uneventful step in the long road to a green card. That medical exam is much more interesting now. The current CIS medical exam form (I-693) solicits information about prior drug use (Civil Surgeon Worksheet, Section 3).

The physician instructions that accompany the form discuss the circumstances under which drug abuse or addiction would be a medical ground for inadmissibility (denial of a green card application). What the medical exam form instructions do not explain is that there is also a  criminal ground for inadmissibility based on simple possession. Translation: in the course of explaining to the physician that you are not and never were addicted to marijuana, you concede that you used marijuana--and that can get you excluded. 'Sound a little unfair??

Welcome to the twisted world of marijuana and cross-border planning!

The Immigration and Nationality Act at Section 212(a)(2)(A)(i)(II) provides that an alien is inadmissible if the alien (1) was "convicted of," or (2) "admits having committed,"  or (3) "admits committing acts which constitute the essential elements of …a violation of …any law or regulation of …a foreign country relating to a controlled substance …." The two exceptions to inadmissibility for involvement with a controlled substance are:

  • where a non-trafficking or non-manufacturing act (i.e., simple possession) was committed before age 18; and
  • for a single conviction of possession of less than 30 grams of marijuana for personal use at age 18 or over (8 USC 1182(a)(2)(A)(i)(II) and (a)(2)(C)—and yes, it is the applicant’s burden to prove that a twenty year old drug conviction involved less than 30 grams—good luck with that.

Marijuana and US Residency

The immigrant visa application form (DS-230 Part II, Question 40B) and adjustment of status application form (I-485 Part 3C, Question 1a) for persons seeking US green cards ask a similar  but not identical question about drug use.

Notice that a conviction is not required and there is no time limitation. Admitting to involvement with marijuana, thirty years ago, is grounds for denying a green card today. The Ninth Circuit, Federal Court of  Appeals (the most liberal Circuit Court in the country), has already ruled that this criminal ground of admissibility is perfectly legal (in that case, a green card applicant admitted to having used marijuana in college 17 years before).

Note too that the US immigrant waiver allowing green card processing for a wide range of infractions (a 212h waiver) is only available for possession of less than 30 grams of marijuana for personal use (i.e., for those who fall within the exception anyway). There is no immigrant waiver available for possession of larger amounts, multiple convictions for possession amounts under 30 grams, manufacturing (growing), or for trafficking. 


In the absence of an immigrant waiver, a subject individual cannot become a US green card holder. However, there may be other means of securing long term presence in the US and US tax residency.  Long term nonimmigrant visas, such as the E-2 treaty investor visa, may be available after receiving a nonimmigrant (212d3) waiver.

Keeping mum about a drug history where there was never an arrest is not necessarily a solution. I do not wish to feed paranoia but failure to disclose a relevant drug history is a separate ground for cancelling a green card and for terminating US citizenship (material misrepresentation to receive an immigration benefit under 8 USC Section 1182(a)(6)(C)(i)). 

(C) Misrepresentation(i) In general Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible. 

There is no statute of limitations on a failure to disclose. An individual who fails to disclose a drug history to CIS but who shares “youthful indiscretion” stories with family, friends, and colleagues is inviting a retirement in the Great White North. As my wise father (and he gets wiser all the time) once said: “if you want to keep a secret, don’t tell anyone!” 

If the cat is out of the bag and horse is out of the barn, a candidate for immigration to the US needs to ask:

  1. whether anyone who knows of that drug history (an estranged spouse, relative, friend, colleague, or competitor) would ever call or threaten to call CIS; and 
  2. whether he/she can mentally accept the lack of absolute certainty regarding "a" and establish a new life in the US anyway. 

There is always the possibility that US immigration rules will change. If the November votes in Washington and Colorado to legalize marijuana indicate a trend, then the day may come when the US federal government decriminalizes and even legalizes marijuana. In the meantime, we have to do cross-border planning with the rules we have. 

Advice of Counsel

Because of the near absence of waivers and the absence of a statute of limitations on a failure to disclose, a drug history can wreck a family’s plans for immigrating to the US. The immigration rules in this area are based not only on straightforward “black letter law” (statutes and regulations) but also increasingly complex case law. Cross-border professionals should advise clients with controlled substance histories to seek competent immigration counsel before moving too far along the path of exiting Canada.