On April 19, 2019, United States Citizenship & Immigration Services (USCIS) announced that the agency is updating its Policy Manual to clarify that marijuana use is a conditional bar to naturalization. This policy guidance significantly impacts lawful permanent residents who work in the legal cannabis industry, and likely will prevent them from becoming U.S. citizens.

One of the requirements for naturalization to U.S. citizenship is that one must possess “good moral character.” A determination that a naturalization applicant lacks good moral character results in denial of the application for U.S. citizenship. Good moral character means “character which measures up to the standards of average citizens of the community in which the applicant resides.” The Immigration and Nationality Act instructs officers to review the applicant’s activities within the 5-year period preceding the filing of the naturalization application to determine whether those activities demonstrate a lack of good moral character, though in some instances USCIS officers may look beyond the statutory 5-year period if morally questionable behavior within the 5-year period is part of a pattern pre-dating that timeframe.

The new guidance reminds officers that marijuana remains a federal “Schedule I” controlled substance and that conviction of a crime related to marijuana manufacture, cultivation, possession, or distribution or admission to any of these offenses, could result in denial of the naturalization application, even if the activity is legal under state or foreign laws. Moreover, the guidance notes that even absent a conviction for a marijuana-related offense, an individual may be found ineligible for naturalization if he admits to acts that constitute the essential elements of such an offense.

The new policy guidance does not, however, include any blanket statement indicating that someone who works in the legal marijuana industry is thereby definitively barred from naturalizing. (The phrase "legal marijuana industry" in this post refers to the industry that is legal under state law, but illegal under federal law.) It may therefore be possible to argue that those who work in the legal industry but who have no contact with the plants themselves may not fall within the scope of those whom USCIS deems to be lacking in good moral character. For example, an accountant who works for a cannabis producer typically would not have any contact with the plant, and it is possible that there are not any federal criminal statutes that such an individual could admit to having transgressed through those activities.

It is also important to note that this new guidance must be read in the context of the Policy Manual section which it updates. Chapter 5 of the USCIS Policy Manual contains a list of “Conditional Bars for Acts in Statutory Period.” So first, it should be noted that activity occurring prior to the 5-year good moral character statutory look-back period would generally not be considered. Second, this chapter also states that controlled substance violations are a conditional bar to a good moral character finding “except for simple possession of 30 g. or less of marijuana.” This is a significant carve-out that will cover most individuals who may have tried using marijuana at some point. Third, an “admission” to a controlled substance offense in a naturalization interview is not as simple as an applicant stating to an officer in a naturalization interview that he or she has used marijuana. According to Chapter 2.E. of the Policy Manual, all of the following must occur in order for an “admission” to be applied to bar approval of a naturalization application:

• The officer must provide the applicant the text of the specific law from the jurisdiction where the offense was committed.
• The officer must provide an explanation of the offense and its essential elements in “ordinary” language.
• The applicant must voluntarily admit to having committed the particular elements of the offense under oath.

That said, as noted above, this policy guidance will have a significant impact on the ability of anyone working in the legal marijuana industry in the U.S. to become a U.S. citizen. There have already been some recent stories of lawful permanent residents being denied citizenship for this reason. This will continue to be the case until marijuana is made legal under U.S. federal law.