Impact of DUI arrests on Visa Issuance

The Department of State (DOS) has recently issued a cable, “Guidance on Processing Visa Applicants with Drunken Driving Hits,” and revised the text of the applicable section of Foreign Affairs Manual accordingly.  Under this new directive, consular officers must refer immigrant and nonimmigrant visa applicants to panel physicians for medical examination if the applicant has a single DUI arrest within the last three calendar years, if the applicant has two or more DUI arrests or a conviction (s) in any time, or if there is any other evidence to suggest the applicant has an alcohol problem. As this new directive is not discretionary but mandatory, it is most likely that any alcohol-related arrest (i.e., disorderly conduct, assault or battery while intoxicated) at any time could trigger this new directive, and render visa applicants inadmissible.

The DOS cable specifies that, while a DUI conviction is not a statutory visa ineligibility, a conviction may indicate that further investigation is needed to determine whether the applicant may be ineligible under Section 212(a)(1)(A)(iii) of Immigration and Nationality Act (INA).  Section 212(a)(1)(A)(iii) of INA provides that any alien  who is determined (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 other, 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 (III) to be a drug abuser or addict, is inadmissible.
                   
Under the new directive, an applicant will be denied a visa if the panel physician finds that the applicant has a diagnosis of mental disorder (including alcohol abuse or dependence) and the applicant currently exhibits harmful behavior associated with the mental disorder or the applicant has a history of harmful behavior that is likely to recur in the future.  However, a visa can be still issued if the physician finds that there is a current condition but no history of harmful behavior, or that there has been a condition associated with harmful behavior in the past but the behavior is not likely to recur.   The behavior can be judged not likely to recur if the applicant is able to demonstrate that the disorder is in remission (typically no outburst for the past 2 years); or the condition is controlled by medication and the applicant certifies in writing that s/he will continue medication or other treatment to control the disorder and prevent harmful behavior.  DOS itself does not involve the medical examination and the medical finding by the panel physician is binding upon the consular officer. 9 FAM 40.11, N3.1.  As panel physician recommendations can takes several weeks and some may refer applicants to a psychiatrist, affected applicants are recommended to plan ahead to schedule their visa interview.

Applicants with alcohol-related arrests inside or outside of the U.S. are advised to fully disclose the incident when they apply for any visa (both immigrant visa and nonimmigrant visa).  Applicants are further advised to present a copy of the arrest report, certified court disposition, and if possible, a declaration and accompanying legal brief at the time of interview or application.  All immigration visa applicants have to undergo a physical and mental exams and National Crime Information Center (NCIC) processing which requires finger printing and FBI criminal background check. INA 221(d).  Generally, a medical exam or NCIC processing is not required for nonimmigrant visa applicants.  However, under this new directive, nonimmigrant visa applicants with DUI arrest(s) are required to undergo a physical and mental exam.  In addition, those disclosing an alcohol-related arrest in the U.S. will have to undergo NCIC processing, too.  The applicant should be aware that DOS can choose to subject an applicant to NCIC processing for other reasons and it would likely reveal an arrest.  Failure to disclose the alcohol-related arrest history on visa applications will likely trigger the inadmissibility bar based on that misrepresentation. 

A thorough planning based on a careful examination of the applicant’s history is required more than ever for a successful approval of his visa application. 

♠ For more information or to schedule a confidential consultation, contact Elizabeth Walder at ewalder@immig-chicago.com or 847-763-8500.  www.immig-chicago.com