Individuals who hold nonimmigrant visas in the U.S. are likely to face severe consequences if arrested for Driving Under the Influence (DUI) or a related offense, based on the recently released guidance from the U.S. Department of State (DOS).
Earlier this year, DOS made public all unclassified content in Volume 9 of its Foreign Affairs Manual (FAM), the policy manual for DOS and its officers. The recently revealed 9 FAM provides that DOS “has the authority to prudentially revoke a visa on the basis of a potential [health-related ground of] ineligibility” when DOS receives notification of “an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years.”
The new “prudential revocation” policy arises out of the agency’s increased concerns about drunk driving and DUI-related offenses and reflects a much more aggressive approach to addressing those concerns than was true in the past. DOS can prudentially revoke an otherwise valid nonimmigrant visa immediately upon notification of the DUI arrest, even while the individual is in the United States, based on the suspicion that the individual is ineligible for a visa on physical or mental health-related grounds. Prior this new guidance, DOS required a visa applicant to submit only a physician’s report related to a previous DUI conviction before receiving a newly issued visa when the individual is outside the U.S. at a consular post. The new guidance applies only in cases involving a DUI arrest. Unlike other grounds for inadmissibility or ineligibility for a visa, a determination of guilt is not required. — It is enough for the individual to be arrested for a DUI-related offense, of which DOS is notified directly by local law enforcement.
Although visa revocation can be a ground for court-ordered removal from the U.S., DOS has stated that a prudential revocation based on a DUI arrest does not require the individual to leave the United States. However, DOS reportedly has issued notices to individuals arrested for DUI-related offenses requiring them to depart the U.S. immediately and report to their consular post overseas.
This new visa revocation guidance obviously presents significant concerns for nonimmigrant visa holders and their families and employers. Individuals who may be affected by this new policy should consult an attorney. Jackson Lewis will continue to monitor this new policy, how it is being enforced, and the potential consequences to our clients.
Author: Christopher Preston