Alcohol-related crimes, charges, convictions are a health-related ground of inadmissibility to the United States.

USCIS, DHS, ICE, Department of State and other immigration authorities are now following the new policy regarding the individuals who have alcohol-related charges, arrests or offenses. Immigrants should keep in mind the consequences of having even one alcohol related criminal charge or offense, which means that USCIS possibly can find them ineligible for an extension of status, change of status, adjustment of status request.

In some cases (not always) it could be possible to leave the U.S.A. and apply for a visa at the U.S. Consulate abroad. However, U.S. Consulates abroad can require applicants to be evaluated by a designated panel physician who will evaluate whether the visa applicant has a physical or mental disorder associated with alcohol use that may pose a threat to the property, safety or welfare of others in the United States.

It should be noted that the U.S. Consulates are now often revoking already issued and valid visas of affected foreign nationals when they receive a law enforcement report of a DUI-related arrest or conviction regardless of whether individuals are in the United States or abroad at the time. A person can receive a phone call or email asking him or her to come to the U.S. Consulate with a passport (no explanations given), so a visa can be physically revoked (cancelled). Most people are unaware that their visas are revoked until they try to return to the United States after travel abroad.  ​Some people with alcohol-related charges receive letters from the U.S. Department of State notifying them of their visa revocation. 

Because these negative consequences are result of the health-related ground of inadmissibility, it means that no conviction is necessary (arrest and charged are enough). 

Until recently, the only affected groups of people were the visa holders with a single alcohol-related arrest or conviction within the last five years, or two or more alcohol-related arrests or convictions.

Under the current policy, it only takes a single alcohol-related charge to trigger action by U.S. authorities. USCIS is now identifying alcohol-related offenses and denying requests for an extension of status in any visa classification.

Until recently and before this policy change, U.S. Consulates only referred visa holders to a panel physician for evaluation when a new visa application was made. Now, U.S. Consulates are responding to law enforcement reports proactively by revoking the already approved and issued visas of anyone who has an alcohol-related charge even in situations where an individual hasn’t made a new visa application.

If USCIS denied an application for extension or change of status, the applicant will have to leave the country and apply for a visa at a U.S. consulate abroad, in his home country. “Every nonimmigrant alien who applies for admission to, or an extension of stay in, the United States must establish that he or she is ​admissible to the United States, or that any ground of inadmissibility has been waived.” In other words, it is an applicant's burden to prove that he/she is not inadmissible. 

An alcohol-related charge is a health ground of inadmissibility, which means that a conviction is not required and charges alone can trigger inadmissibility. Visa holders affected by this rule are not removable (not deportable on this ground) from the United States.

If a visa is denied, can a visa applicant file an appeal of denial of a Visa Application at the U.S. Consulate abroad?  No, you can't appeal a visa denial. There is no appeal process to challenge a consular officer’s decision to deny a visa application. The doctrine of "nonreviewability of consular decisions" was affirmed by the U.S. Supreme Court in 2015 in the case Kerry v. Din .

Another important moment to keep in mind is that neither the visa applicant nor the attorney can review the panel physician’s medical report.

What else can be done? People can ask for an Advisory Opinion from the Department of State’s Visa Office. Also, visa applicants can dispute the findings of the panel physician by asking the consular officer to request an Advisory Opinion from the U.S. Centers for Disease Control and Prevention (CDC), which the consular officer can refuse to do without recourse. Both of these options take a lot of time. As a result, most of the nonimmigrant visa applicants have to obtain a nonimmigrant waiver of inadmissibility through the DHS, which could take six months or longer to process, and during this time the visa applicant has to wait abroad. Approval of any immigrant or nonimmigrant visa waiver is not guaranteed.

During October 19, 2017 meeting, AILA asked the US Department of State Liaison Committee and the Visa Office the following question:

"AILA has received reports of visa holders whose visas were prudentially revoked for DUI arrests while they are in the United States being charged by ICE as removable under INA §237(a)(1)(B), for being physically present in the United States with a revoked nonimmigrant visa. Based on our previous conversations, it is our understanding that a prudential revocation only becomes effective once the alien departs the United States. Has VO discussed this issue with DHS? If prudential revocations are now leading to the initiation of removal proceedings, would VO be willing to revisit the issue to ensure that the prudential revocation only precludes future travel to the United States?"

DoS answer: "We’ve discussed this with ICE, and there has not been a policy change."

New USCIS waiver policy memorandum (08/23/2017).

Updated USCIS Policy Manual, Chapter 7, Physical or Mental Disorders.

Nonimmigrant waiver application.

Immigrant waiver application.

Almost daily, I hear from some of our callers: "I don't need legal consultation, I don't want to hire an attorney. I have only one or two very simple (or quick, or easy) questions, and I want an attorney to answer my questions right now and free of charge because my questions are so simple, quick, and easy!"

I will try to explain why this request doesn't make any sense and how to get proper legal advice.

U.S. immigration law is very complex and constantly changing. There have been no major immigration reforms or amnesties in the past few years (which requires a law to be approved by Congress and signed by the President). However, there have been significant changes introduced by our current and former administrations and the executive branch of the government: executive actions; executive orders of the President; USCIS and DHS memorandums and policy guidance; official and unofficial practice advisories; and changes through our judicial branch (federal and immigration courts), such as, the decisions by the BIA, AAO, Courts of Appeals, US Supreme Court, and even by federal district court judges (for example, an injunction by a federal judge can place on hold an executive order of the President of the United States).

U.S. immigration law is federal in nature and is the same in all states. However, it may apply differently to your situation depending on your background, your place of residence or domicile, US embassy in the country where you apply for a visa, etc.

An experienced immigration attorney may be able to guide you and advise you about specifics, loopholes, various options, and can spot possible problems before they happen, even if it seems to you that your case is pretty straightforward and you have only "one quick question". A seemingly simple or quick question not always can be answered with a simple "yes" or "no" answer. You may not realize it, but a situation may have a lot of hidden issues or variables depending on your venue, court jurisdiction, your factual circumstances, your arrest and criminal record, your family situation and status, prior legal assistance, prior legal actions and applications filed, or even timing, etc.

You can find a lot of useful immigration-related INFORMATION on our Blog. We compiled useful information and links: USCIS forms and fees, case status inquiry, processing times, AR-11 Change of Address, Department of State and NVC, and much more here. Hope you find this information helpful!

To ask basic questions about USCIS immigration forms, filing fees or to inquire about status of your pending case, you can contact USCIS, Department of Homeland Security, by calling their 800 Customer Service Hotline (number is on their website), or send an e-request via a webportal at USCIS website. Case status can be checked online, as well. Immigration courts, U.S. embassies and consulates and National Visa Center each have their own hotlines, call centers or other ways to contact them.

To receive a case-specific legal advice you should talk to a lawyer. Before a lawyer can advise you, we usually email you our confidential immigration questionnaire, and ask you to complete and return it to us. In some cases, we can ask you to email us copies of your immigration forms, paperwork, personal documents. When an attorney reviews your answers to our questionnaire and your documents, it helps her to get to know you, your situation, and decide what legal and/or visa options you shall consider, what are your best chances of obtaining certain visas and immigration benefits, how and when can you bring your family to USA, are you eligible for permanent residency or a green card in the United States, are you eligible to apply for U.S. citizenship, how can your children become U.S. citizens, etc.

It's important that you provide truthful, accurate and complete answers to our questions because an attorney's advice to you is based on information you provide to an attorney. It could be dangerous to give misleading, incomplete or incorrect answers to an attorney.

An attorney or a lawyer is often called "a counselor in law". It means that an attorney counsels and advises you, helps you to understand your situation better, anticipates any possible future issues or complications, offers guidance, and a long-term strategy and planning for yourself and your family.

Legal advice is never a simple "yes" or "no" answer, it's never "use this form"  or "this is the link where you can find all information and all answers you need". Legal advice or consultation is like going to see a doctor. A doctor will ask you questions, take your vitals and administer necessary tests, then she will be able to diagnose you and offer you an appropriate treatment plan. The same is true about work of a good and ethical attorney. An attorney will have to ask you a number of questions, review your documents and paperwork, and only then she will be able to advise you, and offer you guidance and counsel.

In order to avoid mistakes and future complications, it's smart to consult an attorney before starting any legal, immigrant or visa process. Consultation with knowledgeable and ethical attorney should serve as a preventative measure and a way to establish a roadmap and plan your future.

In over twelve years of practice as an immigration attorney in the United States, I have come across of many unfortunate individuals who got themselves into trouble after reading and following wrong advice on internet forums, listening to their friends, co-workers, relatives and neighbors advice, or paying to complete their "paperwork" to an unlicensed "immigration consultant", or "notario", or "tax preparer", or somebody else who speaks their native language in their immigrant community but has no proper training and is not a licensed attorney. In some of these cases, individual's chances of living in USA legally can be permanently destroyed. Some people can become permanently banned from the United States, no matter how many close family members (wife, kids, parents) and other ties they have in USA. Immigration law is very complex and unforgiving, and non-compliance, fraud or misrepresentation could bring consequences more severe than penalties in an average criminal case. Where a convicted criminal can usually expect to be released from prison after a number of months or years and be reunited with his family, a person who was deported and permanently banned from USA may never be able to reunite with his family and loved ones in the United States. Lack of knowledge or bad advice is not an excuse in immigration law. "Simple mistakes" in immigration law context could be costly and often irreversible.

Do yourself a favor and consult a knowledgeable immigration attorney before filing any applications or petitions with the USCIS Department of Homeland Security, or before submitting any visa applications online. You can also schedule a consultation to seek a second opinion, if not sure that your current or former attorney's advice is correct as applies to you. When you have questions or need legal advice you can email us to schedule a consultation. We will be glad to help you.

A few changes to DOS / US Department of State NIV 212(d)(3)(A) waiver procedure: 

Beginning March 16, 2015, a visa must be issued within 90 days of receipt of an approved 212(d)(3)(A) waiver. INA 212(d)(3)(A) waivers are valid for the duration indicated by the ARO officer in the ARIS response. The waiver validity starts on the visa issuance date.(Source 9 FAM 40.301 N8)

See more at DOS website: http://www.state.gov/documents/organization/87150.pdf