More Visa Delays / Denials at Consulates for Alcohol-Related Offenses
Posted Oct 12, 2007
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We at the Murthy Law Firm have recently learned of problems encountered at the U.S. consulates by both nonimmigrant and immigrant visa applicants with any drunken driving arrests or convictions. A record involving a drunk-driving charge previously would delay action on a visa, but it normally would not deem one ineligible to enter the United States. The law itself, in terms of the statute or regulations, has not changed for several years on this issue. Under a U.S. Department of State (DOS) Cable issued in June 2007, however, an applicant with such a record may be screened for a separate ground of inadmissibility related to physical or mental disorders that pose a danger to the individual or to others. The cable applies to all alcohol-related offenses. The details of the grounds of inadmissibility and related matters follow, for the benefit of MurthyDotCom and MurthyBulletin readers.
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Medical Grounds of Inadmissibility
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There is a ground of inadmissibility a person who has a physical or mental disorder, who demonstrates behavior relating to that disorder that may pose, or has posed, a threat to the property, safety, or welfare of the individual or others. The connection to drunk driving is clear in terms of the potential for danger to oneself and others, as well as property. The DOS cable states that a conviction, or even an arrest, within the past three years, is cause for further investigation to determine if an applicant may be ineligible under this medical ground.
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DUI Arrest / Conviction or Evidence Suggesting Alcohol Problem
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The DOS established its procedures after consulting with the Center for Disease Control and Prevention (CDC). If a person fits within the criteria, s/he will be referred to a panel physician for further evaluation. An applicant is referred to the panel physician under the following circumstance: If the applicant has a single drunk-driving arrest or conviction within the last three calendar years, or if s/he has two or more drunk-driving arrests or convictions within any time period. Such offences are sometimes referred to as DUI (driving under the influence) or DWI (driving while intoxicated), depending upon the jurisdiction. Consular officers are also required to refer an applicant to a panel physician if there is other evidence to suggest an alcohol problem.
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Panel Physician Referral for Nonimmigrant and Immigrant Visas
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In situations involving an application for a temporary nonimmigrant visa, an applicant who is found to have an alcohol-related arrest or conviction must be referred to a panel physician for evaluation. This procedure will be followed, even if the panel physician is in another city. An immigrant visa applicant will be referred again to the panel physician for further examination (as such a person would already have undergone a medical examination).
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Standard for U.S. Consular Officer to Deny the Visa
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In order for a consular officer to deny a visa under this medical ground, the panel physician must issue a diagnosis of a mental disorder of alcohol abuse AND there must be current harmful behavior associated with the disorder, or a history of harmful behavior that is likely to recur. The consular officer cannot make this determination without the opinion of the panel physician.
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Alcoholism Not Automatic Ground of Denial
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The Foreign Affairs Manual governing the decisions of the consular officers has been updated to clarify that this ground of inadmissibility does not refer explicitly to the medical condition of alcoholism. Alcoholics are still eligible for entry to the U.S., unless there is harmful behavior associated with the medical condition, and that behavior has posed or is likely to pose a threat to property or the safety of the foreign national or others.
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Conclusion
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Any person who has a history of alcohol-related arrests and/or convictions may face further problems and delays in connection with visa applications at the consulate. Individuals who have problems with alcohol should obtain proper treatment and counseling to address these, both as a matter of personal welfare and to address the matter at the consulate. One who has even a single arrest or conviction may wish to consider timing the visa application so that more than three years will have elapsed between the incident or arrest and the visa application.
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Many drunken driving charges are the result of bad judgment, rather than a medical condition. We take this opportunity to warn MurthyDotCom and MurthyBulletin readers that, in many states, one can be charged with an alcohol-related driving offense even with very low levels of blood alcohol. The best approach, therefore, both with regard to public safety and to avoid an arrest record, is simply not to drive if one has been drinking even a fairly small amount of alcohol. It is not always enough to simply judge one’s own capacity to drive. One should err on the side of caution in such matters, and either designate a non-drinking driver, or forego drinking if one must drive.