DOS Policy on Visa Applicants with Drunk-Driving Records
As we approach the season when many individuals and families travel abroad, our readers are reminded of the U.S. Department of State (DOS) policy regarding visa applicants with histories that include drunk driving or other offenses involving alcohol. The DOS guidance clarifies how consular officers should handle cases when a visa applicant's record shows an arrest or conviction for such offenses. This policy has been in place since July 10, 2007. However, the terms of this policy are not always familiar to or fully understood by those to whom it applies. Thus, we issue this article as a reminder of yet another consideration prior to travel abroad and seeking reentry into the U.S.
Visa Applicants with Drunk-Driving Hits Must be Investigated
All U.S. visa applicants are required to provide information on their visa applications regarding any arrests or convictions in their histories. Additionally, visa applicants are subject to background checks based on fingerprints. If the individual's history reveals an arrest or conviction for drunk-driving or other alcohol related offense, consular posts will investigate further to determine if an applicant may be ineligible for a U.S. visa as a person "having a physical or mental disorder and/or demonstrating behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others." The DOS guidance acknowledges, however, that a drunk-driving conviction is not an indication of automatic, statutory visa ineligibility.
Procedures to Investigate NIV Applicants
Any nonimmigrant visa (NIV) applicant who has had even a single drunk-driving arrest or conviction within the last three calendar years is referred to a panel physician for evaluation. This is true of all visa applicants whose histories reflect two or more drunk-driving arrests or convictions during any period. Consular officers are also required to make such referrals if there is other evidence to suggest an alcohol problem.
An NIV applicant, in such a case is referred to a panel physician for an evaluation for an alcohol-related mental disorder. This is required, even if the panel physician is located in a city different from the consulate.
Procedures to Investigate IV Applicants
All immigrant visa (IV) applicants are required to undergo an immigration physical prior to the visa interview. If an IV applicant's background includes drunk driving or alcohol-related arrests or convictions that fit within the above parameters, the applicant is referred to the panel physician for further evaluation. The physician has to check for a possible mental disorder that may have gone unnoticed in the initial examination.
Physician's Evaluation May Indicate Visa Ineligibility
If a panel physician diagnoses a mental disorder (alcohol abuse) AND finds "current harmful behavior associated with the mental disorder or a history of harmful behavior associated with the mental disorder that is judged likely to recur in the future," the visa applicant is found ineligible to receive a U.S. visa. Neither a diagnosis of alcohol abuse nor a drunk-driving conviction alone is sufficient grounds for visa ineligibility. The doctor is required to make a two-step analysis. The doctor must evaluate whether there is a mental disorder. If such a disorder exists, the doctor must assess whether there is current harmful behavior or past harmful behavior that is likely to recur. The inadmissibility ground only applies when the mental health condition is associated with harmful behavior.
Exercise Caution Before International Travel, Allowing Sufficient Time
Individuals with any history of drunk-driving or other alcohol-related arrests or convictions must be aware of the policy and procedure outlined here when planning travel abroad. At a minimum, one who is subject to this additional scrutiny must allow additional time to undergo a physician's evaluation. The amount of time can vary from consulate to consulate. Ideally, such an individual should be prepared with appropriate proof that may be useful to the physician conducting the evaluation. Certain foreign nationals may be well advised to reconsider their travel plans.
Needless to say, it is best to avoid this problem by never driving while intoxicated or under the influence of alcohol. The laws and legal limits, which vary by state, are generally strict in the United States. Thus, it is best to be careful and simply designate a driver who is not partaking in alcohol. This is wise not only from an immigration and criminal law standpoint, but also with regard to one's personal safety and the safety of others. Despite these warnings, experience has shown that such incidents will continue to arise. When they do, it is important to consider the immigration, as well as the criminal, implications. We at the Murthy Law Firm can provide guidance after criminal arrests, citations, or convictions, as described in our article, Criminal Violations and Arrests in the Immigration Context (25.Aug.2012).
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.