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State Department May Revoke Visa for DUI Arrest Without Determining Guilt

Based on a new guidance released by the U.S. State Department (State Dept.), people who have nonimmigrant visas in the U.S. may face grave results if they are arrested for DUI or a DUI-related offense. In March of this year, the State Dept. publicized all material that is not classified within Volume 9 of its Foreign Affairs Manual, the State Dept. policy manual. Volume 9 authorizes the State Dept. to revoke a visa when it is notified of an arrest or conviction of a DUI or DUI-related offense.

The new policy is based on the State Dept.’s escalating concerns over drunk driving and DUI offenses. It reflects a significantly more stringent approach to addressing these issues than past policies. Under the new policy, the State Dept. can revoke an otherwise legitimate nonimmigrant visa instantly upon being notified of the DUI arrest. This can occur even when the person is physically within the U.S. The rationale is that the person is ineligible for the visa for mental or physical health-related reasons.

Prior to the new policy, the State Dept. required a visa applicant to submit just a doctor’s report related to a previous DUI conviction before getting a recently issued visa at his or her consular post when the person is outside the United States. The new rule applies only when a DUI or DUI-related arrest is involved. A finding of guilt is not necessary, which is not the case for other grounds of ineligibility or admissibility. Pursuant to the new rule, it is sufficient for the person to be merely arrested for a DUI-related offense. The State Dept. is notified of the arrest directly via law enforcement. This portion of the guidance is particularly troubling to advocates of criminal justice and due process.

Visa revocation can result in court-mandated removal from the United States. While the State Dept. has indicated that the new rule based on DUI and DUI-related arrests does not require the person to leave the U.S., the State Dept. allegedly has already forced people arrested for DUI and DUI-related crimes to leave the United States and report to their consular post outside the United States instantly.

The new rule presents serious concerns and potentially far-reaching consequences for visa holders and their loved ones. Since a prudential visa revocation is not considered a finding of inadmissibility, the burden of proof required for the State Dept. to revoke a visa under the applicable statute in the Immigration and Nationality Act (INA) is significantly lower. Under INA and State Dept. regulations, when such information is discovered regarding a visa holder subsequent to the visa’s issuance, an evaluation is performed to determine whether to revoke the previous visa. The alleged rationale of the process is to give the visa applicant the opportunity to provide information that could clear him for new visa issuance or to confirm suspected grounds of admissibility and visa refusal.

Individuals who have been or who may be affected by the policy should consult an attorney as soon as practicable. The State Dept. clarified at a meeting earlier this year that its release of all unclassified Volume 9 content amounted to an announcement of its current policy on visa revocations. Therefore, a periodic review of the revisions of the policy manual will allow immigration attorneys to stay up-to-date on new developments.

If you have been charged with a DUI offense in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation to people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses and representing drivers with revoked licenses before the Illinois Secretary of State. To learn more, and to set up a free initial consultation, contact us online or call us at 217.525.0520.

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