New Focus on Employees with DUI Convictions
It is settled law that one (non-aggravated) driving under the influence (DUI) conviction generally is not a crime of moral turpitude that causes a foreign national to be ineligible for a temporary U.S. visa or for U.S. permanent resident status.
In the past, a few U.S. consulates, most notably the U.S. consulate Ciudad Juarez, Mexico, questioned at length visa applicants with a DUI arrest or conviction to elicit information that the DUI was evidence that the visa applicant is an alcoholic (habitual drunkard) and ineligible for a U.S. visa on that basis. In 2007, the U.S. Department of State (DOS) issued guidance to its U.S. consular officials abroad. The guidance directs that visa applicants with a drinking arrest or conviction within the past three years be referred to a “panel physician” (a term used to denote a physician in the location where U.S. consulate operates and who has been approved by the U.S. consulate to perform medial examinations) for an alcoholism assessment. The guidance also dictated that visa applicants with two or more arrests or convictions at any time be referred to a panel physician for the same reason.
Panel physicians are now interrogating applicants with DUI arrests or convictions about their drinking patterns and tendencies, and some applicants claim their visas have been denied or cancelled due to questioning at such medical exams or at consular interviews.
In fiscal 2008, US consulates denied approximately 800 immigrant and nonimmigrant visa requests on this basis, up from less than 100 in 2003. Some applicants have indicated that the panel physician misconstrued their answers about alcohol intake (such as monthly to weekly). There are three things to take away from these developments:
- if a visa applicant has one DUI or other alcohol-related arrest or conviction, consult with an immigration lawyer about the issue before applying for a visa or permanent residence (because the arrest or conviction must be disclosed on one visa application;
- visa applicants should anticipate in advance how they will respond to any questions about alcohol intake, and consider whether it would be better to answer such questions in writing and keep a copy; and
- if the visa applicant has a past alcohol-related arrest, the applicant should be especially vigilant not to drink and drive.