Cannabis and business immigration don’t mix. Or at least that’s the conservative guidance we often give clients that come to us with that question. That’s not because a particular investment may not be sound, rather because federal law creates inherent conflicts between immigration eligibility and participating in a cannabis venture.
Kate Robertson at MJBizDaily reported on March 1, on a first of its kind development in the space. Bright Green Corp., a publicly traded company on the Nasdaq exchange is planning to raise half a billion dollars in foreign capital through the U.S. EB-5 program. At first blush, that seems patently insane. But, there are a few important aspects of Bright Green’s proposal and 2022 EB-5 regulations that, at least in principal, make it more of a wildly risky gambit.
Cannabis and immigration
U.S. Immigration law is contained in the Immigration and Nationality Act (“INA”). The INA is federal law and administered by the U.S. Citizenship and Immigration Services (“USCIS”). Similarly, in spite of dozens of states enacting legislation that allows for recreational or medicinal use of cannabis, it remains federally illegal to possess, produce, and sell under the Controlled Substances Act (“CSA”) as a schedule I substance. The INA contains many penalties and bars to U.S. admissibility for violating federal law, including the CSA. Among them are bars to admissibility to the U.S. in the first instance and bars to being able to naturalize as a citizen down the road. For analysis of cannabis and naturalization, see Canna Law Blog posts here and here.
The INA provides that a person who is or has been a knowing aider, abettor, etc. in the illicit trafficking of any controlled substance under the CSA is inadmissible to the U.S. This begs the question: is it the case that an investment in a cannabis business makes a person an “aider, abettor, conspirator” of trafficking in an illicit substance? Not necessarily. Most lawyers would likely say that an active investment, meaning also having a role in running the cannabis business would violate the INA. On the other hand, some may say that a passive investment (not having an active role in running the business) would not. In either case, we rarely get to this analysis because lawful residence in the U.S. is the goal for most immigrant investors. Rolling the dice on an investment with questionable approvability is often an untenable risk.
This might make one wonder, why would Bright Green try to raise capital through investment immigration in the U.S., if there is substantial risk the investment may not be approved in the first place?
EB-5 and cannabis immigration
The answer requires a brief discussion of EB-5. The INA contains an immigrant investor program at 8 USC § 1153(b)(5) that allows foreign nationals to apply for permanent residence by making a minimum investment in a new commercial enterprise in the U.S. that creates or preserves 10 full time jobs as a result. The program, known as “EB-5”, is much more complex but for or purposes here that will do. The EB-5 program has since its creation yielded tens of billions in foreign investment to the U.S. and likewise created or preserved hundreds of thousands of jobs for U.S. workers.
In March of 2022, the EB-5 Reform and Integrity Act (“RIA”) was passed. The RIA contains much needed investor protection provisions and creates a stricter compliance and reporting regime for EB-5 project offerors and regional centers. Regional centers are USCIS approved economic entities that are now required to sponsor any EB-5 project with multiple investors (like Bright Green’s proposed project).
Regional centers now must submit applications called I-956F forms (formerly a voluntary “exemplar” filing) to USCIS before individual investors may file visa petitions. This filing must contain among other things extensive information and certifications about the offeror of the securities, the investment project manager, and all of the offering and investment documentation provided to investors. The filing contains every piece of information USCIS will scrutinize to determine project eligibility for purposes of EB-5 law. If USCIS approves an I-956F filing, that approval “shall be binding for purposes of the adjudication of subsequent petitions [filed by] immigrants investing in the same offering.” Before the RIA this was called an “exemplar” filing.
For many investment offerors with non-traditional projects, getting investors to subscribe to the offering will likely require such pre-approval before offering it to prospective investors. As Kate Robertson pointed out in her article, this appears to be what Bright Green has done. Given that an EB-5 investment in a cannabis business is potentially disqualifying under the INA, the I-956F filing affords the Bright Green the opportunity to have USCIS review the filing and make a binding determination about its eligibility for purposes of EB-5 law before the offering. There is no chance any cannabis company, publicly traded or otherwise, could raise $500 million of foreign investor capital in the absence of pre-approval by USICS. But the question remains, is it approvable?
The Bright Green project
Bright Green states in its press release about the project that it has built a one million square foot greenhouse for an “agricultural complex to be the largest in the world for fully-integrated and federally compliant research and drug manufacturing”. EB-5 investor funds will be used for “for working capital requirements to operate its current greenhouse facilities in Grants, New Mexico”.
While “not yet fully complaint”, Bright Green already has a memorandum of agreement “approving” its operations to supply bulk cannabis to cannabis researchers from the U.S. Drug Enforcement Administration (“DEA”), the agency tasked with enforcing the CSA. In principal at least, if the EB-5 cannabis investment is solely supplying cannabis to approved, licensed researchers pursuant to preexisting DEA approval then that is not “trafficking in an illicit substance” under the INA. This is because it is not a violation of the CSA to produce and sell cannabis to federally approved researchers. The CSA does provide for this kind of production to researchers who have gone through its highly rigorous process of approval.
It should be noted, however, that the company would need more than just a DEA letter approving this proposal in order to actually implement its plan. Further, it’s not at all clear that federally approved researchers need the amount of cannabis that the company’s 1 million square foot facility could generate. For an excellent discussion of Bright Green’s “plan” and its attendant issues, see this Substack post from Shane Pennington and Matt Zorn. Now, it’s certainly possible that only some of the enormous facility will be used for DEA approved cannabis production and other parts of the facility for non-cannabis production of other agricultural products.
With that being said, political winds shape agency action and it’s possible that a conservative administration is victorious following the 2024 presidential election. If federal agency policy like the Stephen Miller crafted, Trump Era USCIS were to reemerge, the consequences for the investors in Bright Green’s project could be nightmarish. Consider if the head of the DEA were to revoke Bright Green’s approval to produce federally legal research cannabis. That would throw the project and therefore the investors’ immigration eligibility into question under any interpretation of the INA. That is to say nothing of the attitude towards legal immigration at USCIS, which has yet to recover from the damage done by the previous administration. It is certainly possible that whatever favorable treatment this project is receiving now from the U.S. government changes course in 2025. Adjudication of EB-5 visa petitions at USCIS is currently taking between 5-7 years, so whatever happens following 2024, it will impact investors in this project.
Bright Green’s raise is ambitious to say the least and its federal cannabis allowance seems dubious. But, if approved by USCIS it would be the first raise of its kind pairing immigration and cannabis. Still, the project’s approvability relies on the DEA’s allowance of the company’s operations under the CSA. If the project is approved by USCIS, that will not mean that immigrant investments in cannabis business writ large are likewise approvable. Our conservative advice on this issue will remain the same until federal cannabis reform takes place, irrespective of Bright Green’s project approval.
We will monitor developments on this prospective raise and all things cannabis and immigration here at the Canna Law Blog.