How is this legal?

The United States Government has the authority, under the Immigration and Nationality Act, and the Regulations posted in the Foreign Affairs Manual, to revoke a foreign national’s nonimmigrant visa. INA § 212 lists, generally, the class of aliens ineligible to receive visas. Specifically, INA §212(a)(1)(A)(iii)(iv) provides the following:

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(1) Health-related grounds.-

(A) In general.-Any alien-

(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.

These provisions of the Statute sets the foundation for present Regulations that allows United States Consular Officers to revoke a foreign national’s nonimmigrant visa specifically for DUI, DWI, and related offenses.

Consular Officers abroad are authorized, under the Foreign Affairs Manual, to make Prudential Revocations of nonimmigrant visas. The Foreign Affairs Manual defines Prudential Revocations as such, “Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) or is no longer entitled to the visa classification, the Department may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason.  This is known as a ‘prudential revocation.’” 9 FAM 403.11-5(B)(a).

The Foreign Affairs Manual goes on to target DUI and related offenses specifically. 9 FAM 403.11-5(B)(c) provides that, using the above referenced INA Section as a basis, a Consular Post may prudentially revoke a visa  when “a Watchlist Promote Hit appears for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years.” This section also establishes that the Consular Post can act on its own authority when making such a revocation.

How does the process work exactly?

All immigrants must make a fingerprinting appointment in the country in which they are to receive their nonimmigrant visa. The United States government uses these fingerprints to perform background checks on intending immigrants and visitors. Once the background checks are complete, the U.S. government stores the fingerprints. If a visitor is fingerprinted following an arrest on DUI, or a related offense, a “Watchlist Promote Hit” will appear in the Department of State’s database. At that point, the Consular Post authorized to process your visa may, at their sole discretion, notify the visitor that their visa has been revoked.

Okay my visas been revoked. Must I leave the United States?

No. Once an I-94 is issued, at the Port of Entry, the visitor is authorized to stay in the United States until the I-94 expires, absent removal proceedings. A Prudential Revocation by a Consular Post does not affect the immigration status of the visitor while they are present in the United States.

INA § 237 (a)(1)(B) states, “Any alien… whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i)is deportable.” Unless a visitor is deported through a removal proceeding by an Immigration Judge, they can remain in the United States until the terms of their I-94 have expired. However, once a visitor travels outside of the United States, they will be unable to return unless they reapply, and reestablish eligibility, for a new visa.

What additional procedures will I have to endure to regain a visa to the U.S? How shall I plan for these procedures?

All visa applicants with a DUI, or related offense, arrest are subject to an evaluation by a government approved panel physician. Consular Officers may also refer visa applicants to a panel physician if there is other evidence which substantiates an alcohol problem. While undergoing the evaluation, the physician must determine (1) that a mental disorder exists and (2) that there is a likelihood of future harmful or threatening behavior. Both findings are necessary for the physician to determine that the visa applicant is ineligible for their visa. This evaluation is completely separate from the ordinary medical examination that is required of all visa applicants.

How serious is the government about enforcement?

The United States government has streamlined the process to ensure strong enforcement. The State Department’s Visa Revocation Unit used to handle such cases, but today the same entity which issues visas, enforces the FAM provisions. This cutting out of the middle man is an indication that the State Department is taking enforcement very seriously.  Remember, conviction is not necessary, an arrest alone will trigger the “Watchlist Promote Hit”.

The American Immigration Lawyers Association and the Department of State had a liaison meeting on April 7, 2016. The following exchange occurred at the meeting:

Q: How many revocation notices have been issued to non-immigrants present in the U.S. based on a DUI or other arrest, but not conviction, in the past 6 months? In the past year?

A: The Visa Office does not maintain records of the number of arrest-based revocation notifications issued to non-immigrants.

Although the Visa Office is not keeping records, rest assured Consular Posts are, in fact, revoking visas simply for an arrest, and the numbers appear to rising.

Conclusion: Get a driver or stay home if you’re going to consume alcohol.

At the end of the day, the Government pursues this policy not only because it may establish visa ineligibility, but because it is a public safety issue. So many innocent people are killed every single year because of drinking and driving. If that is not enough to stop you from getting behind the wheel, you will also have you visa revoked once you get caught. Drive Safe!