Consular Post Prudential Visa Revocations for Driving Under the Influence

 

Introduction: Prudential Revocation for Driving Under the Influence

Visa revocationIn general, a Consular Post may not revoke the visa of a nonimmigrant who has either been admitted into the United States or has commenced an uninterrupted journey to the United States. For the Department of State (DOS) to revoke a visa in the case, the revocation must go through DOS's Visa Office of Screening, Analysis, and Coordination. However, the current version of DOS's Foreign Affairs Manual (FAM) allows the Consular Post that issued a nonimmigrant visa to, under certain circumstances; prudentially revoke the visa of an alien who has been convicted within the previous 5 years of driving under the influence (DUI) or a related offense. In this article, we will examine the FAM's policies on prudential visa revocations for DUI arrests or convictions and recent comments by the DOS addressing the FAM guidance.

To learn about visa revocations in general, please see our full article [see article].

Prudential Revocation for Driving Under the Influence

9 FAM 403.11-3(B)(a) (U) states that a consular officer does not have the authority to revoke a visa based on suspected ineligibility or based on derogatory information that would not, in and of itself, be sufficient to support a finding that the applicant for a nonimmigrant visa is ineligible for a visa except if the revocation is based on a driving under the influence (DUI) arrest or conviction. 9 FAM 403.11-3(B)(b) (U) states that consular officers may “[u]nder no circumstances” revoke the visa of an alien who is present in the United States or who has “commenced an uninterrupted journey” into the United States unless the revocation is based on a DUI arrest or conviction. In any other case, the visa of an alien who is in the United States or en route to the United States may only be revoked by the DOS's Visa Office of Screening, Analysis and Coordination (CA/VO/SAC).

The guidance for prudential revocations of nonimmigrant visas for DUIs is found in 9 FAM 403.11-5(B)(c) (U).

The guidance states that either the Consular Post or the DOS has the authority to 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.” Mirroring 9 FAM 403.11-3(B) (U), the FAM states here that the provision for the prudential revocation of a nonimmigrant visa based on a DUI arrest or conviction is unique because “[u]nlike other prudential revocations, consular officers do not need to refer the case to [DOS].”

The basis for such revocation would be suspected ineligibility for a visa or for admission under section 212(a)(1)(A) of the Immigration and Nationality Act (INA). The DOS explained in an April AILA/DOS Liaison Meeting [PDF version see Q&A 6]1 that “driving under the influence is indicative of a possible INA 212(a)(1)(A)(iii) ineligibility for a possible physical or mental disorder with associated harmful behavior.”

The FAM notes that the prudential revocation provision does not apply “when the arrest has already been addressed within the context of a visa application.” Furthermore, it only applies to DUIs and related arrests or convictions and not to other alcohol-related arrests “such as public intoxication that do not involve the operation of a vehicle.”

In general, 22 C.F.R. 41.222(c) requires the DOS to notify an alien, if practicable, when his or her visa is either revoked or provisionally revoked [see section].

Discussion of the New Rules

The DOS explains in the DOS/AILA Liaison Meeting that the new rules allowing for a Consular Post to revoke the visa of an alien in the United States or en route to the United States based on a DUI arrest or conviction came into effect on November 5, 2015. It explains that the new policy was created because “[previously] … there was no consequence for DUI arrests subsequent to visa issuances until the time of the next visa application[,] which could be up to ten years.” Furthermore, the DOS noted that DUI arrests represent both “a public safety issue” and “evidence of a possible visa ineligibility.”

Conclusion: Prudential Nonimmigrant Visa Revocation for Driving Under the Influence

In general, the immigration consequences for a DUI conviction are severe and often fatal to future immigration prospects. The new guidance in the FAM greatly expands the ability of DOS to expeditiously revoke a nonimmigrant visa based upon a DUI (or related crime) arrest. If an alien receives notice of the intent to revoke a visa, he or she should consult immediately with an experienced immigration attorney. The alien may have the opportunity to present evidence to endeavor to overcome the ground of revocation. If the alien's visa is both revoked and cancelled, he or she will have to depart the United States and subsequently apply for a new visa abroad.

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  1. “AILA/Department of State Liaison Meeting,” (Apr. 7, 2016)