DOS Policy on Visa Applicants with Drunk-Driving Record
Posted Jul 20, 2007
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On July 10, 2007, the United States Department of State (DOS) issued a Policy Telegram to Consular Posts on Processing Visa Applicants with Drunk Driving Hits. The DOS guidance clarifies how consular officers should handle cases when a visa applicant's criminal record shows an arrest or conviction for drunk driving, or another alcohol-related offense. This specific policy telegram applies only to applicants for visas abroad; both immigrant visa (IV) and nonimmigrant visa (NIV) applicants. The USCIS has not issued any similar policy guidance.
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Visa Applicants with Drunk-Driving Hits Must be Investigated
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All U.S. visa applicants are subject to background checks based on the results of fingerprints. If such results reveal a drunk-driving conviction, consular posts will hold an investigation 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 telegram acknowledges, however, that a drunk-driving conviction is not an indication of statutory visa ineligibility per se.
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Procedures to Investigate IV and NIV Applicants
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All visa applicants who have had a single drunk-driving arrest or conviction within the last three calendar years, or two or more drunk-driving arrests or convictions in any time period, are subject to further investigation. In addition, any other evidence to suggest an alcohol problem will also warrant further investigation.
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If an immigrant visa (IV) applicant's background check reveals a drunk-driving conviction, the applicant is to be referred back to the panel physician for further evaluation of a possible mental disorder. In the case of a nonimmigrant visa (NIV) applicant, s/he will be referred to a panel physician for evaluation, even if the panel physician is located in another city.
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Physician's Evaluation May Indicate Visa Ineligibility
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If a panel physician makes a diagnosis of 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," a visa applicant is to be found ineligible for the issuance of a U.S. visa. Neither alcohol abuse nor a drunk-driving conviction alone is sufficient grounds for visa ineligibility.
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Conclusion
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Individuals with any history of drunk-driving arrests or convictions should be aware of this new written clarification / procedure of an additional panel physician evaluation and should plan accordingly when applying for either an immigrant or a nonimmigrant visa. Because this is a new procedure, it is unclear exactly how long the overall visa application procedure for the affected individuals would take. It may depend on the background check turnaround, country of visa issuance, panel physician availability, and other individual as well as country-specific factors and conditions. Therefore, all people affected by this new rule should allow for extra time when applying for either an NIV or IV abroad.
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Of course, it is best to avoid this entire problem by never driving while intoxicated or under the influence of alcohol, but such incidents do occur sometimes, and one must understand the immigration consequences. Since the laws and legal limits, which vary by state, are generally strict in the U.S., it is best to be careful and simply designate a non-drinking driver who will take the wheel after any event where one plans to drink alcohol. This is wise not only from an immigration and criminal law standpoint, but also from the standpoint of one's personal safety as well as the safety of others.