Being arrested or convicted for driving under the influence (DUI) or driving while intoxicated (DWI) can pose significant issues for individuals holding nonimmigrant visas in the United States. Upon receiving notification of a DUI/DWI Charges, U.S. consulates will typically revoke the visa stamp.

In most cases, individuals convicted of crimes with a maximum penalty of one year will undergo the revocation process. However, for DUIs and DWIs specifically, consulates may revoke a visa if there are suspicions of ineligibility or lack of entitlement, or for various other reasons. This means that individuals arrested, even if not convicted for DUI or DWI, may still receive a notice of visa cancellation while consular officers assess their visa eligibility.

When someone arrives in the United States, they typically do so lawfully using a nonimmigrant visa stamp issued at a consulate abroad. If that person is arrested or convicted for a DUI or DWI, a U.S. consulate officer can revoke the visa stamp through prudential revocation.

Consequently, the visa foil becomes invalid, preventing the individual from re-entering the U.S. during subsequent travels abroad. The consulate is expected to notify the individual via email or phone once the visa foil has been revoked. However, if the consulate fails to reach the foreign national, the visa foil may be invalidated without their awareness, rendering the visa ineligible for future re-entry.

DUI/DWI Charges Impact on Your Legal Status

A DUI or DWI arrest or conviction does not alter the legal standing of the foreign national, provided they uphold their status in the U.S. Essentially, the revocation of a visa stamp affects the individual’s capacity to journey outside the United States and re-enter using their existing visa. Hence, individuals with visas prudentially revoked due to a DUI or DWI must ensure they maintain their non-immigrant status. To travel with a prudentially revoked visa, the foreign national must acquire a new visa for re-entry to the U.S. following a trip abroad.

The Risk of Green Card Revocation Due to DUI/DWI

While a U.S. green card signifies an individual’s “permanent residence” in the United States, it can indeed be revoked if the holder commits specific crimes, including DUIs or DWIs (driving under the influence of alcohol or drugs) in some cases. However, the revocation of a U.S. green card does not occur immediately. In such a scenario, you can anticipate being summoned to immigration court for removal proceedings. During these proceedings, an immigration judge will review your defense and determine whether to revoke your green card and initiate deportation proceedings against you.

While having one or more DUIs on record isn’t explicitly listed as grounds for deportation in U.S. immigration laws, the determination depends on various factors, making it a complex process. Depending on the circumstances, even a single DUI could render an individual deportable, especially if aggravating factors are present. These factors may include driving on a suspended license or having a child in the vehicle, which could lead immigration authorities to consider it a crime of moral turpitude (CIMT). Committing a CIMT within five years of admission to the United States, with a potential prison sentence of at least one year, is sufficient for deportation. Additionally, having multiple CIMTs on record can also lead to deportability.

If the DUI involves drugs rather than alcohol, it introduces another deportability concern, as it could be considered an offense related to a controlled substance. Furthermore, if the DUI results in an accident causing injury, additional charges such as aggravated assault or negligent homicide may arise, potentially leading to deportability issues. While courts have not consistently categorized such incidents as “crimes of violence,” it remains another ground for deportation. In severe cases, U.S. immigration authorities could invoke this section of the law.
When should you engage with an immigration attorney?

Seek advice from an immigration attorney BEFORE accepting a plea deal or entering into a bargain or receiving a conviction for a DUI. While some plea deals may appear beneficial from a criminal standpoint, they could inadvertently result in admission to a CIMT.

Judges, prosecutors, and defense attorneys often lack awareness of the immigration implications associated with admitting to a CIMT. However, an immigration attorney can collaborate with your defense attorney to potentially devise a sentence that avoids a CIMT conviction.

When might you become a target for U.S. immigration authorities due to the DUI?

Immigration and Customs Enforcement (ICE) agents, at times, visit correctional facilities to identify non-citizens detained there and initiate removal proceedings when deemed appropriate. Collaboration between law enforcement and U.S. immigration authorities is commonplace. Furthermore, ICE agents routinely monitor public records, meaning that avoiding incarceration does not guarantee escaping their attention.

Alternatively, simply applying for U.S. citizenship prompts U.S. Citizenship and Immigration Services (USCIS) to scrutinize your case. This could result not only in citizenship denial but also in the referral of your case for removal proceedings if grounds are identified. (Refer to Applying for U.S. Citizenship With a DUI on Your Record.)

When a Green Card Holder with a DUI Faces Deportation Proceedings, What Occurs?

Upon the green card’s revocation, the Department of Homeland Security (DHS) will commence removal proceedings against you and provide you with a Notice to Appear (NTA) for a hearing before an immigration judge. During the court proceedings, held at the Executive Office for Immigration Review (EOIR), you will have the chance to challenge the accusations made against you and potentially regain your green card (lawful permanent residence), as further detailed below.

What to Do Upon Receiving a Notice to Appear

Upon receipt of a notice to appear in immigration court, it’s crucial to promptly reach out to an immigration attorney. If your hearing date is imminent and you haven’t yet consulted an attorney, you can attend your initial hearing, known as a Master Calendar Hearing, during which you can request the opportunity to obtain legal representation.

Under no circumstances should you fail to attend the Master Calendar or any subsequent court hearings. Failure to appear will result in an automatic entry of an order of removal (“in absentia”), compelling you to leave the U.S. with a bar on re-entry for many years.

Given the rigor and intricacy of immigration laws, it’s not advisable to handle this matter on your own, perhaps with the hope that the judge will show leniency if you provide an excuse for your actions. Without a valid legal basis to retain your green card, you risk deportation.

Seeking Relief from Deportation/Removal

In addition to disputing the allegations, you should apply for any available relief in case you are deemed removable. This may include:

Cancellation of Removal for Certain Permanent Residents, or alternatively, Voluntary Departure.

Cancellation of Removal for Certain Permanent Residents Eligibility for cancellation of removal largely depends on the duration of your presence in the U.S. before the incident and the duration of your green card status. For instance, you may qualify for cancellation of removal by submitting Form EOIR-42A to the court if:

you have been a permanent resident (green card holder) for a minimum of five years you have resided in the U.S. for at least seven years prior to the incident, regardless of your immigration status, and you have not been convicted of an aggravated felony.

If the immigration judge grants cancellation of removal, your green card will be reinstated. In some cases, meeting the aforementioned criteria for cancellation may suffice to merit the judge’s favorable discretion. However, if other negative factors exist in addition to the DUI, the judge will weigh these adverse factors against the favorable ones. Some favorable factors include evidence of:

significant family ties in the U.S. lengthy residence in the U.S., particularly if you have been here since childhood hardship to you and/or your family if you were to be removed/deported your contributions and service to the community, and your rehabilitation since the DUI.

Following the presentation of all evidence and testimonies, the immigration judge will issue a decision regarding the cancellation of your removal. If the decision is unfavorable, you have the right to appeal to the Board of Immigration Appeals within 30 days. It’s strongly advised to seek legal representation for this process.

For further information on this option, please refer to Cancellation of Removal in Deportation Proceedings.

Voluntary Departure

If all else fails, your attorney will likely include a request for voluntary departure as part of your claims before the immigration judge. This simply entails agreeing to leave the U.S. voluntarily, thereby avoiding an order of removal. The advantage is that it also prevents you from becoming inadmissible to the U.S. for several years based on the removal order. For more details, see Voluntary Departure vs. Deportation.

Related Post: Applying for a US driver’s license with an F-1 visa