If you were arrested for driving under the influence of alcohol, commonly known as “DUI” during the holidays, you are likely experiencing an on-going unpleasant and expensive hangover working with a criminal defense attorney to resolve the problem. Unfortunately, if you are a U.S. visa holder, you will also need to work with an immigration attorney because an arrest for drunk driving now leads to an automatic visa revocation.
When you are arrested by any U.S. police agency, the arrest information is placed into the National Crime Information Center (NCIC) database. Each day, U.S. Consular Officers working at U.S. Consulates overseas receive reports of foreign nationals arrested for crimes in the United States. Consular Officers are instructed to email or contact the visa holder at the home address provided in the person’s visa application and give notice the visa is automatically revoked. If you have a spouse and children, their visas may also be revoked. Since U.S. Consulates do not always have updated visa applicant contact information, notice is not always received by the visa holder. Some visa holders only learn about the visa revocation when they travel overseas and are not allowed to board flights to return to the United States since their visas are revoked.
If your visa is automatically revoked due to a DUI arrest, it is not necessary to leave the United States. Revocation of the visa does not automatically make you illegal since your Form I-94 controls your legal status while in the United States, not your visa. As long as you entered the United States with a valid visa, were inspected at the port of entry and issued a Form I-94, the length of your admission is not impacted by the visa revocation. You can continue working in the United States without change.
However, if you need to travel outside the United States, you will need to return to the U.S. Consulate and apply for a new visa. When completing the visa application, you will need to disclose the DUI arrest on the visa application. During the visa interview, a Consular Officer will ask questions regarding the DUI arrest. Failure to disclose the arrest by lying can lead to a Consular Officer making a finding you have committed fraud, which can lead to a permanent bar from ever visiting the United States.
When applying for a new visa after a DUI arrest, you should plan on being outside the United States for at least several weeks, sometimes a few months, to complete visa processing. At the end of the visa interview, a Consular Officer will request you undergo a medical examination with a U.S. Consulate approved physician to determine if you are an alcoholic or whether your behavior may pose a threat to property, safety or welfare to yourself or others. During the course of the medical examination, the physician will ask you several questions about your alcohol consumption habits, ask various psychological questions, conduct a full physical examination of your body and withdraw your blood for analysis. Once the physician completes the analysis, the physician will complete Forms DS-2054 and DS-3026 and send them directly to the U.S. Consulate. If the physician determines you are not a threat, the physician will recommend visa issuance absent other problems with the visa application. However, if the physician determines you are an alcoholic or a threat, the physician will recommend visa denial. The ultimate decision on visa issuance rests with the Consular Officer.
While a DUI arrest is often a mistake in judgment, it does have consequences beyond the criminal proceedings. If you are arrested for a DUI you should assume your U.S. visa is automatically revoked and contact a competent immigration attorney for guidance.