By Stuart Anderson, forbes.com
On October 17, 2018, the Cannabis Act went into effect and legalized recreational marijuana use in Canada. On both sides of the border, the new law has created uncertainty. Americans remain unsure how the law might affect them when they cross into Canada and reenter the United States. Canadian tourists and business people, particularly those working in cannabis-related companies, are also anxious about how they will be treated by U.S. inspectors at the U.S.-Canada border.
To better understand the new law and its impact on both Canadians and Americans, I interviewed attorney Scott Bettridge, chair of the immigration practice at Cozen O’Connor.
Stuart Anderson: How did the Cannabis Act change the law on the sale and use of marijuana in Canada?
Scott Bettridge: The Cannabis Act created a strict legal framework for controlling the production, distribution, sale and possession of cannabis across Canada. Subject to provincial or territorial and other basic restrictions, adults 18 years of age or older are legally able to buy, possess, grow and share cannabis.
Anderson: How does the new law affect U.S. travelers to Canada?
Bettridge: Those U.S. citizens intending to head north for “marijuana tourism” will legally be allowed to buy and use cannabis. It is even legal to carry marijuana on air travel between two Canadian cities so long as you are of age and carry within the legal limits. Use caution, however, as the rules are different across cities and provinces, and they are the ones responsible for developing, implementing, maintaining and enforcing systems to oversee the distribution and sale of cannabis. Cities and provinces are also able to increase and add their own safety measures over and above Federal rules, including restricting where adults may consume cannabis, so be sure to check provincial and local laws prior to any travels.
Anderson: Does the new Canadian law have any impact on the prohibition against bringing marijuana into America? Bettridge: Regardless of the legalization of cannabis in Canada, you still cannot travel across international borders with marijuana, even if it you are traveling to a U.S. state that allows for some form of legalized use or possession. This applies to cannabis or any product containing cannabis or even if the intended use is for medical purposes. Those who do can face serious criminal penalties, such as fines or even jail time, even if unintentional.
Anderson: What issues could a Canadian who uses marijuana face at the border?
Bettridge: A much more significant concern is that previous use of cannabis, in any capacity, could result in individuals being denied entry into the United States. Under federal law, cannabis remains prohibited as a Schedule 1 controlled substance under the U.S. Controlled Substances Act, similar to drugs such as heroin. U.S. Customs and Border Protection (CBP) enforces federal laws, which supersede any state law, and it is a criminal act to grow, distribute, possess, import and sell any controlled substance, including marijuana. These laws also extend to the sale or use of drug paraphernalia.
Anderson: And there is no difference between the way Customs and Border Protection inspectors and consular officers at the Department State interpret the law, correct?
Bettridge: Correct. The Department of State’s Foreign Affairs manual specifically notes that “whether or not a controlled substance is legal under state law, it is not relevant to its illegality under federal law.” Therefore, when non-U.S. citizens present themselves for admission into the United States, CBP will continue to address if they are “admissible” to the United States. A violation of any state, federal or even foreign country law related to controlled substances may render that individual inadmissible to the U.S. based on any number of related “grounds of inadmissibility.” These grounds may include “drug trafficking.”
Anderson: Can you explain U.S. policy as it relates to a Canadian involved in the cannabis business in Canada and the types of restrictions he or she might face?
Bettridge: Many individuals misinterpret the term drug trafficking and believe it solely relates to drug smuggling. In fact, drug trafficking defined includes simple “involvement” in the sale and distribution of illegal drugs. Therefore, inadmissibility to the United States may be based on the fact that an individual simply works in the cannabis industry abroad, including Canada, where it is now legal.
If a Customs and Border Protection Officer knows or has reason to believe an individual is or has been an illicit trafficker, or even aids, abets or assists in the sale and distribution of marijuana, they may be found ineligible to enter the United States. We have seen that this interpretation extends to those involved in any aspect of the cannabis industry abroad, as an owner or investor, or even those involved with related industry products, such as seeding, lighting or harvesting the product. Disclosure of any cannabis-related activity, even while traveling to the U.S. as a business visitor to attend a cannabis-related meeting or conference, may lead to an individual being found inadmissible. This can include a permanent bar to the United States. U.S. Customs and Border Protection released a statement that included this sentence: “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. However, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”
Anderson: Have there been many cases in recent years of people being deemed inadmissible related to cannabis? Are there waivers available?
Bettridge: Based on Department of Homeland Security (DHS) statistics, approximately 22,000 Canadians were deemed to be inadmissible to the United States last year based on any number of grounds. While DHS does not release each specific reason, I believe that many were based on issues related to being involved in the cannabis industry in Canada.
Recent reports indicate “hundreds” of cannabis-related issues per week. Upon questioning and an ultimate finding of inadmissibility, including those being barred permanently from the U.S., certain waivers of inadmissibility may be available based on the merits of each situation.
Waivers may be available for nonimmigrant, temporary visa entry, such as a visitor, or even for immigrant visas when an applicant is otherwise eligible for a green card. While I mention this option, I also have to mention these are extremely difficult to obtain and may take months to receive an answer.
Adjudicating officers have absolute discretion when it comes to granting a waiver and that decision is based on many factors, including any evidence submitted by the applicant. If inadmissibility is based on a cannabis-related conviction or offense, you would need to show you have been rehabilitated and other facts, such as when the offense occurred, will be taken into account. As it applies to those simply working in the cannabis industry, it may be easier to ultimately overcome, at least based on the current adjudication criteria. Only time will tell, and I suspect that policy shifts may dictate some changes in this regard, both short-term and long-term.
Anderson: Many Americans might find it odd that there are these types of policies on the U.S. border given that so many U.S. states have some form of marijuana legalization.
Bettridge: Nearly every state along the U.S.-Canada border has legalized marijuana in some form or fashion. But again, the border falls under federal jurisdiction and federal laws are enforced. Absent any changes to federal law, such as potentially dropping marijuana from being a Schedule 1 controlled substance, it is very likely these issues will continue to be enforced. Anderson: What about the impact on a Canadian who works in the U.S. on a TN or L visa?
Bettridge: Similarly, even those with a nonimmigrant (temporary) visa approved by U.S. Citizenship and Immigration Services (USCIS), such as H-1B, TN or L-1, may still be found inadmissible to the U.S. for similar reasons.
The original visa petition filed with USCIS would outline the basic qualifications for the requisite visa, such as possessing a related degree or experience with the company abroad in a qualifying capacity, as well as the individual’s qualifications. Obviously, while that petition should not contain any misrepresentations, a company in the U.S. engaged in the business of cannabis-related products or research may file to hire a foreign worker.
Once approved, that employee would take his or her approved petition to the border (if Canadian) or to a U.S. Consulate or U.S. Embassy abroad to apply for a visa based on that approval. At the border or Embassy, similar questions would still be asked related to the individual’s past or current activities abroad. Based on those answers, they still may be found inadmissible to the United States or ineligible for the visa based on being a “drug trafficker.” Simply, having an approved petition doesn’t afford any “safe haven” for these employees.
Anderson: What types of questions might a Canadian coming to the U.S. face today from an American immigration inspector at the border?
Bettridge: CBP Officers have broad discretion to ask any admissibility related question they deem appropriate to each individual. They will generally begin with “What is the purpose of your trip to the United States?” and can evolve to “Have you ever smoked marijuana?” based on any number of circumstances. Officers are suspicious by nature, since that is their job. They can ask any questions related to an individual’s job or employer, or even probe for information regarding any prior convictions.
Clearly, if you arrive at the border noticeably under the influence of drugs or even alcohol, you are in for a long afternoon of questions at secondary inspection. This inspection process could result in an officer taking a sworn statement, fingerprints and even cancelling an individual’s visa, which will stay permanently with the individual and certainly have a lasting impact on future travels. It’s important to remember that this process and future impact is not solely related to business travel. This applies to family vacations, visiting your children who may be in school or living in the U.S., or even to seeking future employment in the United States. The bans can be permanent. It’s very far-reaching.
Anderson: What advice do you have for business people and visitors on both sides of the border? Bettridge: Our advice has been geared mainly towards Canadians seeking entry to the United States. First, we are advising clients to use common sense. Do not have a marijuana leaf on your business card. Do not wear shirts, hats or other clothing that celebrates the industry. Similarly, do not place pro-marijuana stickers on your laptop, phone or carrying case. Each of your possessions may be searched at any time by an CBP Officer.
If you are employed in a fringe industry, such as lighting, for example, if asked, discuss your occupation and company in general terms, speak to a variety of products being offered, do not begin a discussion related to “grow lights.” That said, we advise to always be honest and truthful. There have been many instances where individuals misrepresent facts and issues in the belief they are “helping” their cause, only to find out the willful “fraud” has worse consequences than the original truth. Also, be aware that CBP Officers may check social media or use online tools to “corroborate” your story. If you explain your job title and job duties, be sure your LinkedIn profile matches.
For employers, we are advising to have discussions in advance with employees who travel to the U.S. for business purposes. They may decide to select one employee over another to attend a meeting or conference based on many factors. While some employers may find these discussions uncomfortable or unnecessary, thinking they “know” their employees, we are advising employers to urge their staff to apply for trusted traveler programs such as Global Entry, TSA pre-check, NEXUS, etc. The majority of these programs have pre-interviews before approval. If an employee encounters any issues during this process, it is highly likely they would encounter similar issues at the U.S.-Canada border.
At this time, we are unaware of any similar issues related to employment in the U.S. cannabis industry and travel into Canada. Overall, be smart and plan ahead for the best results.