international airport or pre-clearance facility routinely ask busi-ness
travellers questions about their intended activities and
employment in determining eligibility for admission.
From a personal use perspective, under the INA, individuals
that have been convicted of or have used a controlled substance,
including marijuana, can be deemed inadmissible to the United
States based on criminality concerns. This finding requires that
marijuana use is considered a crime in the jurisdiction where it is
committed. For example, a Canadian seeking entry to the United
States who has used marijuana in Canada prior to Cannabis legal-ization
faces this risk if asked by a CBP officer about use prior to
Oct. 17, 2018.
After marijuana is legalized in Canada, legal use will not ren-der
an individual inadmissible to the United States on the basis
of criminality. However, users may still be deemed inadmissible
for other grounds, such as being deemed a drug addict or suffering
a mental/physical illness. Moreover, there is a reasonable possi-bility
that CBP officers will more regularly ask questions about
personal use after marijuana is legalized in Canada, given the sig-nificant
BUSINESS TRAVELLERS WORKING IN THE
A business traveller who works directly in a cannabis business in
Canada and seeks entry to the United States to perform related
business activities faces the risk of being deemed inadmissible.
Specifically, an immigration officer may conclude that such indi-viduals
are trafficking a controlled substance as they are employed
in the marijuana trade and intending to carry out related activities
in the United States, contrary to the INA.
The potential consequences can include the denial of entry and
an inadmissibility finding leading to permanent bar of the worker
and his/her spouse and children. It is possible to seek a waiver if
a permanent bar is issued. However, the waiver process requires
considerable preparation and processing time and, if issued, has a
maximum validity of only five years (subsequent renewals would
be required). Moreover, in order to obtain the waiver, the appli-cant
presumably could no longer be involved in the cannabis trade.
BUSINESS TRAVELLERS ASSOCIATED OR DOING
BUSINESS WITH THE CANNABIS INDUSTRY
Similar risks may also extend to business travellers who do not
work directly in a cannabis company in Canada but provide ser-vices
or engage in commercial dealings with marijuana businesses.
More specifically, an immigration officer may find that such an
individual is a knowing assister, abettor, conspirator or colluder
with others in marijuana trafficking. This could include, for exam-ple,
a Canadian employee seeking to enter the United States in
order to make a financial investment in a marijuana company, a
consultant seeking to develop strategies to enhance cannabis dis-tribution
capabilities, or even an accountant offering professional
services to a marijuana operation in the United States.
There is currently little formal guidance on this point, which
effectively leaves immigration officers with significant discretion
to determine whether an individual should be considered an illicit
trafficker in a controlled substance or a knowing assister, abettor,
conspirator or colluder.
RECOMMENDATIONS FOR HR PROFESSIONALS
The number of cannabis-related companies and businesses pro-viding
services for the industry will continue to increase with
Canada’s upcoming legalization of marijuana. It is critical for
HR professionals within these businesses to assess cross-border
considerations related to Canadians and other foreign nationals
travelling to the United States, including:
■■ Promoting awareness. Ensure that business leaders and
employees are aware of the current climate and risks of cross-border
travel into the United States as it relates to the marijuana
trade and personal use. Despite the increased attention on
the upcoming legalization of marijuana in Canada, there is
significant confusion and lack of awareness about the risks to
business travellers connected to the cannabis industry.
■■ Identifying service lines and employees at risk. Depending
on the type and structure of your business, there are certain
individuals and services lines that are more likely to face higher
risks when entering the United States for business travel (i.e.
executives in a cannabis company). It is critical to identify
these groups in advance and develop appropriate strategies to
■■ Developing specific cannabis policies as part of your business
traveler policy. After developing a corporate strategy for
business travel related to the cannabis trade, document any
specific processes as part of your short-term business traveller
policy. This may also include the assignment of additional
responsibilities to your immigration compliance officer or
legal advisor to respond to specific issues related to cannabis.
Furthermore, as part of your policy, consider the development
of specific training or guidance for business travellers to ensure
they understand their legal obligations and risks seeking entry
to the United States, while also being well prepared to anticipate
and respond to admissibility-related questions, if raised. n
Naumaan Hameed is a partner, Canadian Immigration Practice
Leader at KPMG Law LLP.
COMPANIES MAY FACE
LOST OPPORTUNITIES AND/
OR BUSINESS FAILURE
IN THE EVENT THAT KEY
TALENT IS UNABLE TO
ENTER THE U.S. MARKET.
46 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL