Prudential Revocation of Visas Following Arrest for Broad Range of Crimes

As discussed in the MurthyDotCom NewsBrief, Nonimmigrant Visa Revocation Update for Those with DUI (16.Feb.2016), the U.S. Department of State (DOS) can prudentially revoke a visa foil (commonly referred to as a visa “stamp”) for those convicted, or even just arrested, for driving while under the influence of alcohol. The DOS recently confirmed to a representative of the American Immigration Lawyers Association (AILA) that the practice of prudential revocations is not limited to drunk driving offenses. Rather, the DOS “… prudentially revokes a visa when it receives information that a visa holder has been arrested for any crime, including domestic violence, that may result in a visa ineligibility.”

Mere Arrest Sufficient for Prudential Revocation of Visa

The Foreign Affairs Manual (FAM), which provides official guidance to consular officers, gives officers expansive authority to prudentially revoke a visa “… if an ineligibility or lack of entitlement is suspected, or for virtually any other reason.”

Given how broadly the FAM is worded, consular officers certainly appear to be empowered to revoke a foreign national’s visa following an arrest for any type of crime. Further, the DOS advised AILA that the use of prudential revocations following an arrest for domestic violence is consistent with long-standing policy, and that the DOS has not expanded the “number or types of offenses for which a visa may be revoked prior to conviction.”

In practice, however, the use of prudential revocation appears largely to have been limited to drunk driving arrests, until relatively recently. Within the past few months, reports have surfaced of visas being prudentially revoked for non-alcohol related arrests, including domestic violence and shoplifting.

Prudential Revocation of Visa Should Not Impact Current Nonimmigrant Status

While the DOS may revoke a person’s visa following an arrest, merely being arrested for a crime generally does not have any impact on a foreign national’s current nonimmigrant status in the U.S. Rather, the person must be either convicted of the crime or admit to having committed the crime, for it to potentially cause the person’s inadmissibility or removability (i.e. deportability).

Yet, there have been reports of the U.S. Citizenship and Immigration Services (USCIS) improperly denying immigration benefits based on a prudential revocation of a visa. The DOS confirmed that it has worked with the USCIS to provide guidance to USCIS officers on this matter. As of April 2018, however, that guidance had not been finalized.

Conclusion

Criminal matters can lead to serious immigration consequences. A foreign national who is arrested should seek counsel both from a criminal defense attorney and from an attorney who focuses on U.S. immigration law.

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