HLG Catia Canada blog

Can Canadians Involved in the Legalized Marijuana Industry Enter the United States?

For months we have been hearing rumors that Canadian citizens who work in the Canadian legalized marijuana industry, or who invest in the sector either in Canada or in the United States, have been having trouble crossing the border into the United States.  Some rumors even indicated a lifetime ban for those Canadians who were not truthful in their responses to CBP officials. At first, we discounted these rumors as urban myths. Then in early September, the rumors got louder and articles about the same were broadcast in nationally recognized publications.  

Then on Friday, September 21, the U.S. Customs and Border Patrol released an official statement confirmed these rumors to be true.  

Canada’s legalized adult use will take effect on October 17. While medicinal use is legal in 30 U.S. states and 9 of those states also permit adult use, cannabis still remains federally illegal in the United States where marijuana is categorized as a Schedule I drug under the Controlled Substances Act.

The CBP statement provides that “[g]enerally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.”

The criteria for inadmissibility is predicated on Section 212 of the U.S. Immigration and Nationality Act of 1952.  Any Canadian citizen who uses cannabis recreationally prior to October 17th, is considered to be breaking Canadian law and may be barred from entry into the U.S.  Those Canadian citizens who invest in the U.S. legalized cannabis sector, may be barred from entering the United States because they may be seen as engaging in a criminal activity involving a controlled substance.  

On October 9th, CBP updated the September 21 release, to clarify that Canadian citizens who work in or facilitate the legal marijuana industry in Canada can enter the United States as long as the reason for them coming to the country is unrelated to the marijuana industry.  In other words, CBP’s update clarifies that if a law is legal in Canada, CBP will not prevent those involved in the Canadian industry from coming to the U.S. solely because they work in an industry that is federally illegal in the United States. However, Canadians who are involved with the U.S. state legalized industry may not necessarily be permitted into the United States.

CBP further provides that the “[d]eterminations about admissibility [into the U.S.] and whether any regulatory or criminal enforcement is appropriate are made by a CBP officer based on the facts and circumstances known to the officer at the time.”

To date, no similar statement has been issued affecting citizens from any other country from entering the United States.

Cátia Kossovsky, Esq. has more than fifteen years of corporate transactional experience. Having worked at two AM200 law firms, in New York and in Pittsburgh, she handled general corporate law, commercial transactions, mergers & acquisitions, joint ventures, strategic alliances, private equity, venture capital financing, regulatory compliance, and securities filings. Additionally, Cátia has experience with cross‐border transactions, specifically with a focus on Latin America, and has conducted corporate governance, compliance monitoring, and management of operational risk. She can be reached at catia.kossovsky@hoban.law.