Although not legal on the federal level, the marijuana industry is a fast-growing economic sector in the U.S. Thirty-three states have legalized medical marijuana and 10 of those have legalized recreational use. Based on online job search websites, there are about 200,000 to 300,000 marijuana-related jobs available (many on the lower-paid agricultural-side). As the industry grows, the need for more high-skilled workers, such as chemists, is likely to grow. Canada legalized marijuana in 2018 and the first marijuana exchange-traded fund is already becoming profitable. A Wall Street analyst who has followed the industry since 2016 forecasts that the market in the U.S. could grow to $80 billion by 2030 if there is federal legalization. Without federal legalization, however, the profits and high-skilled foreign workers will go elsewhere.

Under U.S. immigration law, any foreign nationals, even green card holders, who participate in the marijuana industry, make investments, or use marijuana where it is legal (even for medicinal purposes) may be subject to harsh consequences — barred from returning to the U.S. or prevented from naturalizing (for at least five years).

There have been bills introduced in Congress that would help to alleviate the conflict between state and federal laws, including eliminating federal penalties for those complying with state marijuana laws and removing marijuana from the list of controlled substances.  But to date none, other than the SAFE (Secure and Fair Enforcement) Banking Act, have had much traction. SAFE, a bill that would protect banks that work with the legal marijuana industry, passed in the House of Representatives but likely will not pass in the Senate. If passed, this bill would be a first step, but would do nothing to protect foreign entrepreneurs and workers involved in the legal marijuana industry.

Should Congress pass a bill removing marijuana from the “controlled substance” list, it would end the immigration problem (at least going forward). Immigration “penalties” that affect those involved with the legal marijuana industry come into play because marijuana is considered a “controlled substance” under federal law. The alternative would be to change federal immigration law regarding admissibility so that use of marijuana or participation in the legal marijuana industry would no longer be a bar to benefits. Some foreign nationals who have been denied benefits on these bases are appealing the decisions.

Non-U.S. citizens should be wary of participation in the marijuana industry. If you have questions about these issues, please reach out to a Jackson Lewis attorney. We will continue to follow this issue and provide updates as they become available.