My receptionist transfers a frantic call from the wife of a potential client. The wife tells me the police arrested her husband the night before for drunk driving. In Ohio, he was charged with Operating a Vehicle Impaired (“OVI”). In other states, it may be Driving Under the Influence (“DUI”) or something similar. She tells me the criminal court set bond, but the jail notifies her that her husband has an ICE detainer. Her husband holds a valid nonimmigrant visa (“NIV”) and she worries what will happen to her husband’s immigration status.

Inadmissibility and Removability for OVI/DUI

The government does not regard a simple OVI/DUI conviction without aggravating factors a crime involving moral turpitude (“CIMT”). Likewise, felony OVI/DUI (i.e., OVI/DUI based on multiple simple OVI/DUI convictions) is not a CIMT. However, multiple OVI/DUI convictions may make a foreign national inadmissible, affecting the foreign national’s ability to adjust status.

While a simple OVI/DUI is not a CIMT, some states have passed laws that enhance an OVI/DUI to a more serious crime when aggravating factors are present. In such cases, if the aggravating factor requires an element of knowledge, the government may consider the aggravated OVI/DUI a CIMT. For example, Arizona has an aggravated DUI statute that converts a simple DUI to an aggravated DUI if the person also knowingly drives with a suspended license. In cases involving this statute, the courts found the presence of this aggravating factor escalated the crime to a CIMT. Thus, foreign nationals convicted under this statute are potentially inadmissible to and removable from the US. If you have been charged with an aggravated OVI/DUI, it is important to consult with an immigration lawyer. This is an area of immigration law and policy that is fluid and the subject of much litigation.

Prudential Revocation of Nonimmigrant Visas

In November 2015, the Department of State (“DOS”) implemented a policy to revoke nonimmigrant visa following OVI/DUI arrest or conviction. Such an arrest or conviction may be considered a “physical or mental disorder,” which is grounds for visa ineligibility under INA § 212(a)(1)(A)(iii). As such, only if the arrest occurs after the consulate issues the visa can the government revoke the visa foil. 

This policy means that if the foreign national, who is physically present in the US, can continue to reside in the US uninterrupted for the duration of his nonimmigrant status validity. However, if the foreign national receives notice that the DOS or consulate intends to revoke his visa, the foreign national will likely be unable to use the visa foil for re-entry after travel abroad. If the foreign national attempts to re-enter using the revoked visa, immigration officials will physically cancel the visa at the port of entry. Please note, the prudential revocation does not prevent the foreign national from reapplying for a new visa.

The policy can pose particularly serious immigration consequence for F-1 students. Designated school officials tend to rely heavily on consular communications when issuing various approvals and recommendations to maintain the student’s valid status. Consular communication indicating a revocation of the student’s visa foil may cause the school official to believe that s/he should no longer issue those approvals or recommendations. As a consequence, the student will be out of status and will need to depart the US immediately.

Conclusion

Driving under the influence is a serious offense in the US and may cause serious immigration consequences. In addition to hiring a criminal defense attorney for the OVI/DUI charges, it is extremely important to consult with an immigration lawyer as soon as possible after the arrest. Dayton, OH immigration lawyers Larson, Lyons & Al-Hamdani can work with your criminal defense attorney to devise the best strategy to minimize the immigration consequences. Of course, the best prevention is to take a taxi or have a designated driver