Driving under the influence cases are very common, and fortunately do not in general trigger adverse immigration consequences. Assuming the case involves driving under the influence of alcohol, as opposed to drugs, a simple DUI conviction does not trigger deportation or inadmissibility. If the person is on probation for this offense, or any other, he or she is temporarily ineligible to naturalize until probation has ended. This type of conviction can constitute a moral turpitude conviction only if the offense includes not only DUI elements but also elements of knowingly driving on a suspended license. It is no longer considered to be a crime of violence aggravated felony, regardless of sentence. It can constitute a negative discretionary factor, and thus contribute to denial of discretionary immigration benefits. Aggravated DUI convictions and health-related issues are covered below.

 

Aggravated DUI Convictions

 

Three aggravated types of driving under the influence convictions are driving under the influence of drugs, multiple DUI convictions (i.e., DUI with one or more prior DUI convictions), and DUI causing injury.

 

DUI and Drugs

 

Driving under the influence of drugs can sometimes constitute a controlled substances conviction, which can trigger deportation, inadmissibility, and bar some forms of relief from removal.  This is not always the case.  First, the state definition of controlled substances may differ from the federal list.  Only offenses involving controlled substances on the federal list will trigger adverse immigration consequences.  State convictions that definitely involve (or may involve) a drug that is on the state list but not on the federal list will generally not be considered a controlled substances conviction under immigration law.  Second, some states, such as California, may prohibit driving under the influence of “drugs” that are not even on the state controlled substances list.  See California Vehicle Code § 312 (“drugs” for purposes of driving under the influence of drugs includes any substance at all that may adversely affect the ability to drive, even if it is not on the state controlled substances list).  The record of conviction must be consulted to see whether it identifies the specific substance involved, and that substance must be on the federal list of controlled substances before the state conviction can constitute a controlled substances conviction under immigration law.

 

Multiple DUI Convictions

 

Since one DUI conviction (not involving a federal controlled substance) does not trigger adverse immigration consequences. Multiple convictions of simple DUI alcohol do not do so either.  Therefore, a DUI with one or more prior DUI convictions do not trigger adverse immigration consequences.

 

DUI with Injury

 

A conviction of DUI causing injury does not constitute a crime of violence aggravated felony or crime involving moral turpitude, and so does not directly cause adverse immigration consequences.  This type of conviction, however, may be considered as evidence that the person has a dangerous health condition that may constitute a medical ground of inadmissibility.  See “Health-Related DUI Issues,” below.

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Health-Related DUI Issues

 

Being a habitual drunkard constitutes a statutory bar to showing Good Moral Character under INA § 101(f)(1).  Multiple DUI convictions can contribute to finding a noncitizen is a habitual drunkard.  Good moral character is a prerequisite to obtaining many different immigration benefits, such as naturalized U.S. citizenship.

 

Driving under the influence convictions can contribute to a finding of inadmissibility based on a physical or mental disorder – alcoholism – if it has caused a threat to the property, safety, or welfare of the alien or others under INA § 212(a)(1)(A)(iii). Simple DUI convictions generally do not cause a problem, but DUI with injury or other evidence a DUI has caused harm can trigger inadmissibility under this ground.

 

Revocation of US Visa Resulting from DUI

 

Employers and employees should be aware that foreign nationals in the United States on nonimmigrant work visas (such as H-1B, L-1, and O-1 visas) are subject to severe consequences following an arrest for driving under the influence (DUI) or driving while intoxicated (DWI), even when there is no finding of guilt. Per longstanding practice and U.S. Department of State (DOS) regulations, if the DOS discovers derogatory information about an applicant after a visa is issued, it may determine, after an evaluation of the facts, whether it is prudent to revoke the previously issued visa out of concern for public safety. In a shift from previous practice, the DOS has recently begun exercising this discretion in a more stringent manner. As a result, immigration lawyers have been reporting increased instances of visa revocations for individuals already in the United States.

 

Every visa applicant has been fingerprinted by the time he/she applies for a visa.  This information is used to check the security backgrounds of a visa applicant and stored for future use.  After a visa applicant has arrived in the U.S., if he/she is arrested for any reason and fingerprinted for it, the fingerprinting can trigger a “hit” to the Department of State, which may notify the U.S. consulate post that has issued the visa.  Depending on the nature of the arrest, the post can choose to revoke the person’s visa.  If that happens, the post will send an email to the visa holder and alert him/her that his/her visa has been revoked.  The latest policy appears to be that the post will revoke the visa if the person has been arrested for DUI in the U.S.  It is important to note a conviction is not required.  An arrest, alone, is sufficient to trigger the visa revocation.  In addition to DUI, the post can revoke a visa for other reasons as well. 

If a person’s visa has been revoked, he/she cannot use it to come to the U.S. anymore, even though the visa may appear to be valid on paper.  Anyone who attempts to use a revoked visa to enter the U.S. will be flagged either at the time the person checks in for a flight, or when the person lands.  He/she will be denied entry into the U.S. 

 

If the person is already in the U.S. and proceeds through U.S. Customs on a student or work status, the revoked visa does not necessarily mean that the person has to leave the U.S.  The revoked visa does not automatically void the person’s status in the US because the visa is only used for entry into the U.S.  After the person has entered the U.S., the validity of his/her status is governed by the I-94 admission record.  As long as the person’s I-94 record is still valid, the person may remain in the U.S. after his/her visa has been revoked.  However, the revoked visa means that the next time the person travels outside of the U.S., he/she must apply for a new visa in order to return to the U.S.  The arrest and/or conviction that has resulted in the visa revocation obviously makes it more uncertain whether the person can obtain a visa again.  

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If the person has used an email when applying for the U.S. visa that is no longer valid, the person may not even know that his/her visa has been revoked.  This is particularly troubling if the person travels outside of the U.S. without any realization that his/her visa has been revoked and he/she has to apply for a new visa, which usually takes several weeks even in the fastest post. 

While we have not seen any persecution for deportation of individuals in the U.S. whose visas have been revoked, the fact is that the law allows ICE (Immigration and Custom Enforcement) to initiate deportation under INA 237(a) for individuals whose visa has been revoked.  This applies even though the underlying offence triggering the visa revocation is not a deportable offense.  

If an individual is arrested or a notification of visa revocation is received, the individual and his or her employer should review their options carefully to maximize their chances of renewing the visa and maintaining or extending nonimmigrant status. As scrutiny of public safety grounds for visa ineligibility increases, we are monitoring the evolution of the DOS’s policy in this area and will notify clients of developments and best practices to avoid visa problems for visa holders.

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