Immigration Status & DUI
A DUI can have serious consequences on your immigration status. If you are not a U.S. citizen and have been charged with a DUI, it is important to seek legal advice from an attorney who has experience with both the criminal and immigration consequences of a DUI.
What will happen to my legal permanent resident status (green card/LPR) if I get a DUI?
For LPR’s, one misdemeanor DUI alone is not a deportable offense. However, if charged as a felony it may be. Moreover, other common charges associated with DUI’s, such as criminal damage, endangerment, and charges associated to DUI’s when children are in the car, may render a client deportable or inadmissible.
If an LPR has multiple DUIs or received a DUI while driving on a suspended license, this can also be considered an aggravating factor which, when combined with other factors, renders the LPR deportable or inadmissible.
Furthermore, a legal permanent resident will generally have difficulty obtaining citizenship within five years of most convictions because an applicant for naturalization must show “good moral character.”An applicant with only one misdemeanor DUI charge in the last five years could still be able to meet that standard, but because this is a discretionary determination, the way the case is charged and resolved may affect citizenship eligibility, even for misdemeanor offenses, and especially if there are multiple offenses or the conviction is recent.
What will happen to my visa if I get a DUI?
Non-immigrant visa holders are particularly vulnerable to immigration consequences if they are charged or convicted of a DUI while in the U.S.
Current Visa Holders
Once you are arrested for a DUI, the information regarding your arrest is made available to all the agencies involved in granting immigration benefits. Upon receiving this information, the State Department could revoke your visa and require that you re-apply. If your visa is not revoked, you will still face increased scrutiny when you re-enter the U.S. and the Customs and Border Patrol (CBP) inspectors will need time to determine that you are still eligible for the visa. CBP will usually still allow non-immigrant visa holders with only one misdemeanor DUI to enter the U.S., but expect lengthy delays and an interview in secondary inspection. Having proof of the disposition of your charge will help minimize the delay. Travelers with multiple DUIs (even if the prior conviction was in your home country) or with other charges in conjunction with your DUI, could be denied entry and returned to their home country (often after a night in detention).
ESTA (Visa Waiver) Travelers
If you travel to the U.S. on an ESTA authorization (Visa Waiver countries such as the U.K. and Australia) and receive a DUI, it is very possible you will receive a revocation notice of your ESTA authorization. If your ESTA is revoked, you will need to apply for a tourist visa at a U.S. Embassy or Consulate abroad and will be subject to the screening detailed in the section below. Even if you do not receive a notice of ESTA revocation, it is possible that the next time you check in for your flight the airlines will refuse to board you without a visa or that immigration officials at the port of entry in the U.S. could deny your entry. At a minimum, you will be sent to secondary inspection and face long delays each time you enter the U.S. It is also possible that CBP will allow you to enter for the current trip, but advise you that you will not be admitted for future travel unless you obtain a visa.
Although Canadian visitors are not required to have an ESTA authorization, CBP officials at the port of entry or at the pre-clearance inspection station in Canada will have to determine whether you are still eligible to enter the U.S.
Having the proper documentation regarding your conviction and sentence, or proof that the charges were dismissed, can help to mitigate these hassles and inconveniences.
Visa Applications or Renewals After A DUI
If you were denied entry, your visa or ESTA application was revoked, or you were advised by CBP that you needed to obtain a visa for future travel, you will need to apply for a visa at a U.S. Embassy or Consulate. If you are renewing your visa, but had a DUI arrest since your last visa was issued, you will also be subjected to extra scrutiny.
The DUI itself is not a visa ineligibility, but could be an indicator of a medical visa ineligibility because a DUI is considered “harmful behavior”related to substance abuse. Of course, any other charges related to the DUI, could result in criminal visa ineligibilities.
A consular officer is required to refer the following visa applicants for a full medical exam prior to issuing a visa:
- Applicants with a single alcohol related arrest or conviction in the last five years
- Applicants with two or more alcohol related arrests or convictions in the last ten years or
- Any evidence to suggest an applicant has an alcohol problem (ex. you were charged with only vandalism, but you were intoxicated when you committed the crime)
These screening procedures are applicable regardless of the country in which the DUI arrest or conviction occurred.
You cannot obtain this medical exam prior to the visa interview. After the interview, the consular officer will refer you to an embassy-approved physician and this exam can be very costly.
Ultimately, a consular officer must be convinced that a visa applicant will obey U.S. laws while traveling in the U.S. on their visa. A very recent or egregious DUI, or multiple DUIs (even if expunged), could still result in a visa denial.
Because there are so many variables related to DUIs and visa eligibility, and expungement has no relevancy to visa eligibility, this is a very specialized area of law, therefore it is important to choose a criminal defense attorney who understands the nuances of DUI consequences for visa holders.
What will happen to my DACA status if I get a DUI?
A DUI is considered a “significant misdemeanor” for the purposes of DACA status, therefore if convicted of a DUI it is likely a DACA recipients will lose their status and face deportation. Even if you are convicted of a lesser charge, DACA is a discretionary benefit and therefore the way that the case is charged and resolved can affect your eligibility for DACA. Because of the very serious consequences of a DUI for DACA recipients, it is important for DACA recipients to contact an attorney that is experienced in mitigating both the criminal and immigration consequences of DUIs.
To ensure that the immigration consequences of your DUI charge are given full consideration, any non-US citizen charged with a DUI, including legal permanent residents, should consult an experienced criminal defense attorney familiar with immigration consequences of DUIs.