The USCIS and U.S Department of State have reportedly changed their approach to alcohol-related charges and convictions, in the context of U.S visa applications and applications for extension of status.

The consequences of the apparent change of policy are likely to be far-reaching, short-notice and, in many cases, disastrous.

Grounds of Inadmissibility

Every foreign national who applies for a non-immigrant visa or extension of status 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

There are numerous grounds of inadmissibility, including, inter alia, health-related grounds and conviction-related grounds. If a ground of inadmissibility is deemed to exist, the individual in question will be considered inadmissible to the United States by the USCIS and/or U.S Department of State and will be unable to enter the U.S.

A conviction for an alcohol-related offense may be categorized as a health-related ground of inadmissibility and/or a conviction-related ground of inadmissibility, depending on the nature of the offense and the applicant’s overall criminal record.

If you are unsure whether you are admissible to the United States (for example, due to your criminal record or health-related issues), we would advise you to seek legal advice regarding your unique circumstances from a licensed U.S immigration attorney.

The New Approach to Alcohol-Related Convictions

Under the new approach adopted by the USCIS and U.S Department of State, existing U.S visa holders with any alcohol-related charges or convictions on their record will be ineligible for extension of status, on health-related grounds.

This means any U.S visa holders (for example, E-2 Treaty Trader visa holders) with any alcohol-related charges or convictions on their record, who wish to seek extension of status prior to expiration of their visa, will be compelled to depart the U.S and file an application at a U.S Consulate abroad.

As part of the application process, the individual will be required to undergo a medical examination by a designated panel physician to determine if they have a physical or mental health disorder associated with alcohol use that may pose a threat to the property, safety or welfare of the applicant or others in the U.S. In short, the medical examination will determine if the individual in question is inadmissible to the United States, on health-related grounds.

An application at a U.S Consulate abroad may take several weeks/months to process, during which time the applicant is forced to remain outside the United States, disrupting their family life, work life and any business interests they may have in the U.S, in addition to causing considerable stress and financial loss.

In addition to the above, U.S Embassies are now in the practice of revoking the U.S visas of foreign nationals upon receipt of a Police report of a single DUI-related arrest or conviction. Alarmingly, in many cases the former U.S visa holder is abroad when their visa is revoked and does not become aware of the revocation, until they are denied entry to the U.S at the Port of Entry.

Regrettably, since the U.S Department of State cites health-related grounds as the reason for visa revocation/denial of an extension of status request, a mere charge is sufficient to trigger a finding of inadmissibility. Under these circumstances, a conviction is not necessary in order for a visa holder to lose their visa.

If My Visa Application is Denied by the U.S Embassy Due to an Alcohol-Related Charge or Conviction, May I Appeal?

Sadly, it is established law that there is no direct right of appeal against a U.S Embassy decision to deny a visa application on the basis of an inadmissibility arising from an alcohol-related charge or conviction.

However, an individual may consider the merits of seeking an advisory opinion from the U.S Department of State on the application of law used by the Consular Officer. The merits of seeking such an opinion should be judged on a case-by-case basis. If you are in this position, we would advise you to contact a licensed U.S immigration attorney, in order to discuss your options.

Davies Legal

At Davies Legal, we are able to provide advice and representation in connection with all types of immigrant and non-immigrant visa applications, including applications involving grounds of inadmissibility arising from drug or alcohol use. We balance innovative immigration solutions with realistic expectations in order to maximize your prospects of success and undertake to keep you informed. Call now for a complimentary assessment of eligibility by a U.S immigration attorney.

Published: 29th October 2017