Dealing with a DUI charge is never pleasant but could it also cause immigration problems? DUI offenses are criminal in nature but they have traditionally not been viewed as rising to the level of serious criminal conduct that has immigration consequences. Over the past few years, however, the Federal Government has quietly began implementing various measures aimed at establishing almost a “zero tolerance” policy toward drunk driving offenses in the immigration context. Under this new approach, DUIs are now viewed as a potential health-related ground to deny consular visa applications, a trigger to revoke already issued visas, and an aggravating factor weighing against granting various discretionary immigration benefits.
DUI as a health-related ground to deny visas
U.S. consulates have historically paid little attention to DUI charges, absent additional aggravating factors. This all changed in July 2007 when the government shifted gears and started viewing DUI offenses as a potential health related ground for visa denial. Certain types of physical or mental disorders with associated harmful behavior could make someone ineligible to be admitted in the United States. Visa applicants with prior DUI offenses are required to have mandatory medical examinations with consular-designated physicians to evaluate whether the DUI is a symptom of a physical or mental disorder with possible harmful behavior.
Medical examinations have become mandatory for visa applicants with either 1) a single drunk driving arrest or conviction within the last three calendar years preceding the visa application, or 2) two or more drunk driving arrests or convictions in any time period. Even if there is no formal DUI charge, consulates have the power to refer visa applicants for medical examination if there is any other evidence suggesting alcohol abuse or dependency.
DUI now leads to automatic visa revocation
The U.S. Department of State recently revved up its anti-drunk driving policy. Consulates are now instructed to automatically revoke the visas of foreign nationals who had DUI or DWI offenses after the visa holders had already arrived in the United States. The implicit goal is to make people with DUI charges go through new medical examinations by forcing them to apply for new visas. Consulates are supposed to contact foreign nationals, either by email or at their last known address, to inform them that their visas were revoked. In practice, consulates do not always have the most current contact information. Many foreign nationals remain blissfully unaware that their visas were revoked and do not realize what happened until they travel abroad and are then not allowed to board their international flights on the way back to the United States because of invalid visas.
I have a DUI but was never informed by the consulate that my visa was revoked. How can I find if my visa was really revoked?
You may try contacting the consulate that issued your visa and inquire if it is still valid. Consulates do not always respond to case-specific inquiries so this may not always work. Your local Customs and Border Protection (CBP) deferred inspection office may also be able to give you this information. Unless you received some type of formal visa revocation notification, the safest approach is to assume that your visa was automatically revoked and plan to apply for a new visa the next time your travel abroad.
I have a DUI and I think my visa was revoked. Do I need to leave right away to apply for a new visa?
Even if your visa was automatically revoked, you should remain in valid immigration status. As long as you were properly inspected at the border and entered with a valid visa, the length and terms of your admission are determined by the validity expiration date listed on the latest admission stamp in your passport and also on your I-94 record. A visa revocation by a consulate abroad has no bearing on how long you may remain in the United States. It only affects your ability to return to the United States after traveling abroad.
I had a DUI after my last entry and I think they may have revoked my visa. I need to travel abroad. What should I do?
You should plan to apply for a new visa when you travel abroad. This means preparing a new visa application and scheduling an interview appointment, if required. Now is a good time to evaluate your eligibility carefully and make sure there are no other wrinkles with your case. The consulate will use the opportunity to put your application under the microscope and they may deny it on some other, unrelated ground. Before your new visa is issued, the consulate will make you take a new medical exam. This will delay the whole process and you should plan to spend abroad at least 1-2 weeks on top of the standard 5-7 business day visa processing time.
If my visa was revoked following a DUI charge, will the consulate revoke my spouse and children’s visas as well?
In general, the risk of visa revocation for your family depends on your visa type. If your visa is based on a pre-approved USCIS petition, for example H-1B or L-1, the risk of revoking your family’s visas is relatively small. They are not exclusively linked to your visa but are also based on the USCIS approved petition. However, there is some risk for visa classifications where consulates do not need pre-approved petitions from USCIS to issue visas, such as F-1/F-2 students, L-1/L-2 issued under L Blanket Petitions, and E-1/E-2 treaty visas. In such cases, revoking your visa may result in revoking your family’s visas as well. This is because their visas are closely tied to your visa and cannot exist on their own. Either way, you are strongly advised to check with the consulate that issued your family’s visas and confirm.
I am an F-1 student and I was just charged with DUI. How will this affect my immigration situation?
Your F-1 student immigration status and I-20 SEVIS record should not be impacted by a DUI charge. You will, however, need to apply for a new F-1 visa the next time your travel abroad. As explained above, it is likely that your spouse and children, if applicable, may also need to apply for new F-2 visas as well when they travel abroad.
U.S. consular officers have very broad discretionary authority to deny visa applications and revoke already issued visas. Up until recently, visa revocation authority has been exercised sparingly and only on a case-by-case basis. This new policy shift brings a new era of automatic visa revocation for an entire class of people, regardless of the nature or severity of their DUI charges. While the U.S. Immigration Service does not have the same sweeping authority, it has already introduced its own measures that often have serious consequences to foreign nationals with DUIs, as discussed in the second part of this post.