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H1B denied for DUI

H1B employee went for stamping. Had a single driving under the influence (DUI) also known a driving while intoxicated (DWI). The visa was denied and required a physician report to determine if the employee was inadmissible. While a first time DUI offense should not require a physician report, they may. As the far below email attest, even a single DUI can be a reason for initial denial of the visa (H1B in this case). We advised our emailer to obtain an expungement of the DUI record.

All nonimmigrant visa applicants may be found inadmissible to the United States due to physical or mental disorders with associated harmful behavior to themselves, others, or property. Alcohol abuse is considered to be a mental disorder. Alcohol abuse does not need to rise to the level of addiction or alcoholism. A person is considered to abuse alcohol if its use has begun to interfere with his or her life. The U.S. Department of State Foreign Affairs Manual (FAM), Title 9, 40.11 N11.2, states alcohol abuse by itself is not enough to cause a finding of inadmissibility. But, when an associated harmful behavior is present, such as DUI or DWI, inadmissibility may be found.

When a consular officer requests a medical report by a panel physician. The panel physician follows the Center for Disease Control's (CDC) Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders. The instructions provide the physician may base finding on the Q&A portion of the medical exam, medical and psychiatric standards of alcohol abuse found outside the Technical Instructions, and from any of the applicant's criminal history. And, INA §222(f), prevents the visa applicant or attorney from viewing the physician's report under an exemption of the Freedom of Information Act (FOIA) and Privacy Act.

Alcohol related arrests are specifically mentioned in the FAM regulations to direct nonimmigrant visa applicants be sent to a panel physician for evaluation when the applicant has:

1. A single alcohol-related arrest or convictions in the past five years (please note: an arrest is enough, a conviction is not required);

2. Two or more alcohol-related arrests in the past 10 years; or

3. Other evidence to suggest an alcohol problem.

A nonimmigrant waiver is available under INA §212(d)(3). When a waiver of inadmissibility is required the visa applicant makes a request to the consular officer who forwards the request to the Admissibility Review Office (ARO) within Homeland Security for adjudication. Current nonimmigrant waiver request adjudication processing times are more than six months.

A visa applicant may contest the findings of the panel physician by requesting the consular officer file an advisory opinion request with the CDC. The consular officer may refuse to file the advisory opinion request without recourse. When the request is forwarded to CDC, it is unlikely for CDC to overturn the decision of a panel physician.

I got convicted for a DUI offense as a misdemeanor in OCT 2014. I went to India for getting my H1-B stamped and got refused because of the offense. They asked me to provide panel physician report to the embassy.

After doing that I got my H1-B stamped and came back to US in Feb 2015. I took care of the situation and got done with all the things which court asked me to do. I have travelled after that to India couple of times and every time I enter US, I had to go through second immigration.

Problem is, my H1-B is expiring in Aug 2017 and even though my company has filed for an H1-B extension, is it advisable to travel to India to get it stamped with all these travel ban stories I am hearing every day after President Trump got elected? Can the embassy refuse my VISA again? Can I be deported?

The embassy can refuse your visa again and require another panel physician report. While you should not be deportable. You may be deportable. Recent Immigration & Customs Enforcement (ICE) has arrested persons with DUI for deportation. While you are required to disclose arrests to U.S. immigration, even if the case is dismissed. And, a record of proceedings must be obtained. Should you be sentenced, and you qualify for expungement, we recommend you obtain an expungement of your criminal record.

DHS Secretary Kelly Affirmed that recent ICE Enforcement Actions Includes persons with DUI including them as a public safety threat, criminal aliens and gang members, as well as violators of immigration laws.

Of those arrested, approximately 75 percent were criminal aliens, convicted of crimes including, but not limited to, homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.

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