According to the new FAM provision (9 FAM 403.11-3) updated by the U.S. Department of State, consular officers shall prudentially revoke nonimmigrant visas for DUI arrests, as driving under the influence is indicative of a possible physical or mental disorder with harmful behavior (possibly ineligibility under INA 212(a)(1)(A)(iii). Please note that as a general rule, under no circumstance can a consular officer abroad revoke a visa when the individual is already in the U.S., or after the individual has started an uninterrupted journey to the U.S. However, revocation based on a DUI seems to be an exception to this rule under the new FAM.

As DUI arrests are both a public safety issue and evidence of a possible visa ineligibility, consular officers have been required to refer nonimmigrant visa applicants with one alcohol related arrest in the last five years or multiple alcohol related arrests in the past ten years to a panel physician for medical examination. As of November 5, 2015, consular officers and the department have the authority to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A) ineligibility when a Watchlist Promote Hit appears for an arrest or conviction of a DUI that occurred within the previous 5 years. Please note that this is in the discretion of the consulate officer.

Before your visa is revoked, you will be notified of the intention to revoke the visa and given an opportunity to show why the visa should not be revoke. You will also be asked to present the travel document in which the visa was issued (i.e. your passport).

 

If your visa is indeed revoked, then reinstatement procedures are needed to undo the revocation. Specifically, you will need to apply for a waiver that determines that the reason for the revocation has been overcome and that you are no longer ineligible for a visa. In other words, waiver for an ineligibility under section 212(a)(3)(B) of the INA must be requested by the Department. In other words, DUIs are being considered a serious enough offence to possibly amount to grounds for inadmissability.

Thus far, there has been no equivalent revision to any immigration regulation, and therefore, the USCIS is not bound in any way by this new FAM provision in its adjudication for nonimmigrant visa status in the U.S. Moreover, it is still unclear how a consulate officer would process a revocation of a visa if the beneficiary is already in the U.S. Finally, we have yet to hear of any actual case where a visa was revoked based on a DUI arrest or record. However, given this new FAM provision, it would be prudent for all foreign nationals in nonimmigrant visa status to be even more extra cautious and avoid drinking and driving in all circumstances.