By: Richard Hanus, Esq.
Published November 14, 2022
Mixed signals. This is the best way to describe our society’s stance when it comes to marijuana use and U.S. immigration law. Our state laws send one message, such as in Illinois where marijuana use and distribution is now legal. Our federal laws though send a completely opposite message, prohibiting these very same activities.
When it comes to applying for a Green Card or U.S. citizenship – immigration benefits rooted in federal law – an admission you smoked or distributed weed, including pursuant to authority under state law, can crazily lead to application denial. Even worse, you might find yourself in deportation proceedings. Sooner or later though our nation will have to come to grips with this classic case of conflict of laws and come up with a coherent policy. In the meantime, we continue to see all kinds of marijuana mixed signals and stupid U.S. immigration results, such as the recent denial of an H-1B work visa filing that would have authorized a software developer’s employment with a company servicing the U.S. marijuana dispensary industry.
Last week, Treez Inc, a provider of inventory tracking software, brought suit against the U.S. Department of Homeland Security after Treez’s unsuccessful attempt to facilitate a worksite location transfer of Ameya Pethe, an Indian software developer in the U.S. on an H-1B visa. The client location Treez sought to assign Pethe to happened to be directly involved in Pennsylvania’s legal marijuana industry. The visa petition was denied because providing software development services to support marijuana inventory control would constitute “aiding and abetting” a marijuana operation, a federally prohibited activity.
The troubling aspects of this decision are manyfold. First, Treez, the H-1B employer in this case, actually has no direct involvement in marijuana related transactions or distribution, and instead only provides inventory control software to companies involved in the legal marijuana industry. Second, even if Treez was a direct player in the industry, how could a federal legal process – such as the adjudication of an H-1B visa petition – penalize parties like Treez and Mr. Pethe who are otherwise engaged in activities that are entirely lawful and specifically authorized under the laws of their state?
The federal lawsuit also correctly highlights the type of overbroad disqualifying net an immigration law outcome like the one here presents: “Defendants’ dangerous position implicates the operations of all legal businesses that provide any services to customers in the state-legal cannabis industry — from telephone and internet providers to sign makers and ATM providers.” In other words, our federal government has some important work to do toward making sure needlessly incongruent results like those at play here and in other immigration contexts are avoided.
For an interesting discussion on the conflicts our now antiquated federal marijuana laws can present and creative legal strategies to work around them, see Jeffrey Chase’s “Can Keathley Be Applied More Broadly?”
It’s inevitable that odd results like the one at issue in the Treez lawsuit will keep clogging up our courts. That’s just one reason why its time to make sure obvious injustices involving federal penalties for state authorized activities are put to a halt. For more information about, see Treez et al. v. DHS et al., case number 4:22-cv-07027, in the U.S. District Court for the Northern District of California.
PUBLISHED November 12, 2022 – “IMMIGRATION LAW FORUM” Copyright © 2022, By Law Offices of Richard Hanus, Chicago, Illinois