Wilson Law Group recently became aware of a disturbing new trend relating to non-immigrant visa (NIV) holders.  Those in the United States with student (F), employment-based (H-1B), exchange (J-1) visas, and investor visas (E-2), among others, are affected.  Those NIV holders who, during their stay in the US, are arrested for a minor criminal incident are receiving correspondence from the Department of State, often via email or phone, indicating their visas have been cancelled while they are still traveling in the United States.  The revocation messages indicate a foreign national may reapply for a visa and reestablish eligibility.  This is known as a “prudential visa revocation.” 

In most cases, the only basis provided for the visa revocation is through citation to a section of law.  Common reasons for visa revocation messages are arrests for driving while intoxicated (DWI) or driving under the influence (DUI).  In such cases, the visa revocation message cites section 212(a)(1)(A)(iii) of the Immigration & Nationality Act, claiming the NIV holder has “a physical or mental disorder and a history of behavior associated with the disorder, which has posed a threat to the property, safety, or welfare of the alien or others…”  The State Department provides no other reasoning or explanation.

When a foreign national reapplies for the visa at the consulate, he or she will be required to undergo additional medical screening to confirm there is no chemical dependency.  However, the medical exam is not a simple examination.  Rather, it is often a biased evaluation that does not properly evaluate whether one is truly chemically dependent.  A person defends him or herself in the criminal case will matter more than ever so there is some ability to pushback against a consular staff person in a person’s home country. 

The Secretary of State has the authority to revoke a visa at any time.  INA § 221(i) (2016); 22 C.F.R. §31.122(a) (2016).  However, The Department of State has issued these messages even before an NIV holder is convicted of any offense.  A simple arrest is sufficient to trigger a revocation letter.  This process raises significant due process concerns.

The question remains then: what should a visa holder do after a visa has been revoked in this fashion?  A foreign national need not immediately depart the US.  He or she still may lawfully remain in the United States pursuant to the I-94 admission.  (Remember, a visa is just the key to open the door to the US; the I-94 admission determines how long one may stay here.)  The visa revocation does not impact the period of stay as determined by the Customs and Border Parole agent. 

Once a foreign national has left the US, he or she must reapply for a visa to reenter.  One should plan extra time to reestablish eligibility, including undergoing the required medical examinations.  Wilson Law Group also recommends foreign nationals submit legal arguments confirming visa eligibility to further bolster an application. 

While a foreign national whose visa has been revoked is technically deportable and could be placed into removal proceedings under section 237(a)(1)(B) of the Immigration & Nationality Act, the question of deportability is a question of law that an immigration judge would consider.  It is unlikely that even Immigration & Customs Enforcement would invest resources in an alien in lawful status with a DWI arrest.

Reevaluation of visa eligibility on this basis has been unheard of until now.  Therefore, Wilson Law Group recommends that NIV holders that receive visa cancellation letters consult an attorney before taking action.  It also means that retaining an attorney who understand the immigration implications of any conviction is more important than ever.  Wilson Law Group is ready to defend you here and abroad.