Prudential Revocation of Nonimmigrant Visas for DUI Arrests
On November 5, 2015 the U.S. Department of State (DOS) implemented a policy which required consular officers to revoke the nonimmigrant visas of foreign nationals convicted of, or merely arrested for, driving under the influence, driving while intoxicated, or any similar crimes that occurred within the last five years as stated in 9 FAM 403.11-3(A). Once the DOS is aware of the alcohol-related incident, the consulate is suppose to contact the foreign national and provide notification of the revocation. The revocation occurs regardless of whether the foreign national can be reached for notification. In cases where the foreign national cannot be reached for notification, they may only become aware of the revocation when they depart the U.S. and try to re-enter with the same visa.
In September of 2016 DOS issued updated guidance on how to implement the new policy, which stated:
Driving under the influence indicates a possible visa ineligibility under INA 212(a)(1)(A)(iii) for physical or mental disorder with associated harmful behavior that is likely to pose a threat to the property, safety, or welfare of the applicant or others in the future.
Under this guidance, DOS can revoke the visa for a mere DUI arrest—determination of guilt is not necessary.
If a foreign national’s visa is revoked, they cannot use the visa to re-enter the U.S. They are required to reapply for the visa and go before the consulate and demonstrate eligibility. It is DOS policy to refer a foreign national with one alcohol-related arrest in the past five years or two or more arrests in the last 10 years to a panel physician for a medical evaluation to determine whether an alcohol problem exists. This “prudential revocation” policy extends the practice of revoking a foreign national’s visa if a DUI occurs after the visa is issued.
If the foreign national is in the U.S. when they receive notice of revocation, it does not necessarily invalidate their status in the U.S. Once a foreign national is in the U.S. their status is determined by the I-94 record given by Customs and Border Patrol at the port of entry or by U.S. Citizenship and Immigration Services with regard to a change or extension of status. While the visa revocation should not disrupt the foreign national’s status, Immigration and Custom Enforcement can initiate removal proceedings against a foreign national under INA 237(a) for a visa that is revoked, regardless of whether the underlying offense is a deportable offense.
It should be noted that if a foreign national with a J-1 visa has their visa revoked, the revocation applies to their J-2 dependents as well. So far, it is the only visa class where dependent family members can be affected by the revocation.
Foreign nationals with nonimmigrant visas should understand the serious nature of drunk driving incidents, and how an arrest or conviction can affect their visa status.
If you require assistance with an immigration matter anywhere in the United States, the immigration attorneys at Livesay & Myers, P.C. can help. From our offices in Northern Virginia, we represent clients in Virginia, D.C. and across the United States. Contact us to schedule a consultation today.