In a recent Q&A session, the Department of State's Visa Office discussed its new policy requiring consular officers to prudentially revoke nonimmigrant visas for driving under the influence ("DUI") arrests subsequent to visa issuance. The arrest alone is sufficient for DOS to prudentially revoke a visa based on suspected ineligibility - a conviction or admission is not required. Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) (including for conviction of certain crimes, controlled substance violations, etc.) or is no longer entitled to the visa classification, the Department of State ("DOS") may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason. This is known as a prudential revocation.
Effective November 5, 2015, DOS implemented the requirement for consular officers to prudentially revoke nonimmigrant visas after a DUI arrest because the agency considers such an arrest as indicative of a possible ineligibility under the Immigration and Nationality Act ("INA"): ineligibility for a visa due to a possible physical or mental disorder associated with harmful behavior. Previously, a nonimmigrant's DUI arrest subsequent to being issued a visa did not pose an issue for a foreign national until the next time she or he sought to apply for a visa and would have to disclose the arrest on the visa application.
DOS and its affiliated visa offices receive information on arrests and convictions through a number of U.S. government agencies' electronic databases, some of which do not include final dispositions of criminal charges after arrest. Following a DUI arrest, a foreign national in the U.S. on a nonimmigrant visa may receive a notice from a consulate stating his/her visa has been revoked due to derogatory information received by DOS and that the visa is not valid for future travel to the U.S. Although affected visa holders are not required to immediately depart the U.S., they are required to present the visa at the consulate for physical cancellation upon returning abroad. Revocation does not preclude a foreign national from reapplying for a new visa, but the DUI arrest would have to be disclosed on any future visa application.
This is a major change in policy and has the potential to affect a significant number of visa holders currently living and working in the U.S. who have been arrested for a DUI within the past five years and who have not yet had opportunity to disclose that information on a visa application. For more information on DOS's new policy and to view the updated Foreign Affairs Manual ("FAM") that includes the DUI arrest provision visit the FAM online.