Consequences of a DUI and Conviction on Immigrant Status

A DUI record of arrest, criminal charge, and conviction may affect an immigrant’s status in the United States. When arrested, fingerprints and photographs are taken and registered in a national database. This is a permanent record that is referenced every time an alien makes an application for an immigration benefit like work authorization, visa renewal, asylum, naturalization, or admission into the United States with a Green Card.  Having a criminal conviction on your record can lead to a denial of admissibility, removal/deportation, or denial of citizenship. 

DHS Priority for removal of individuals with DUI convictions 

The Department of Homeland Security has a new set of immigration enforcement priorities.  The new priorities are divided into Tier 1, Tier 2, and Tier 3 priorities from highest to lowest. Tier 1 includes suspected terrorists, gang members, aggravated felons, and other top priorities for removal. Tier 2 includes individuals convicted of three or more misdemeanors, excluding minor traffic-related crimes, as well as individuals convicted of any one “significant misdemeanor.” Under the new guidelines, “driving under the influence” is considered a “significant misdemeanor.” A single DUI conviction could potentially make you a Tier 2 priority for removal enforcement purposes. Tier 3 encompasses individuals who have been ordered removed since January 1, 2014.

Green Card Holders and DUI

A conviction for a single misdemeanor DUI (driving under the influence) does not usually cause immigration problems for Green Card holders.

Green Card Holders DUI’s and InAdmissibility

“Inadmissibility” refers to a list of reasons under immigration law that someone can be barred from entry to the United States.  In a DUI case, the grounds of inadmissibility most likely to block your right to reentry are:

  • Committing crimes involving moral turpitude (CIMT); a simple DUI is not a CIMT 
  • Conviction of 2 or more crimes with a sentence of at least 5 years
  • Drug or alcohol addiction (inadmissibility on medical grounds), or
  • Conviction of a crime involving a controlled substance

Green Card Holders DUI’s and Deportability 

Immigration law also contains a list of grounds of “deportability,” which apply to Green Card holders. If something on this list matches you, you can be placed into immigration court (removal) proceedings and ultimately deported from the U.S.:    

  • Aggravated felony
  • Crime of violence
  • Crime of moral turpitude committed within five years of admission to the U.S.
  • Two separate crimes involving moral turpitude
  • Controlled-substance offense.

Deferred Action Childhood Arrival (DACA) and DUI 

A misdemeanor conviction for DUI for alcohol or drugs will negatively impact a Deferred Action/Dream Act (DACA) applicant or recipient.  DACA has very strict requirements including a strict requirement that an applicant may not have convictions for any felony, significant misdemeanor or multiple misdemeanors. Misdemeanor DUI’s are deemed to be significant misdemeanors under the terms of the Act. This means that a single conviction for misdemeanor DUI could result in a denial of relief under DACA.  A felony DUI conviction is automatically a reason for denial under the Act’s felony provision.  If you are a DACA recipient or applicant, you should consult with an immigration attorney because of the serious consequences of a DUI charge on your status. 

Deferred Action for Parents of Americans (DAPA) and DUI

A misdemeanor conviction for DUI for alcohol or drugs will negatively impact a Deferred Action for Parents of Americans (DAPA) applicant or recipient.  DAPA has very strict requirements including a strict requirement that an applicant may not have convictions for any felony, significant misdemeanor or multiple misdemeanors. Misdemeanor DUI’s are deemed to be “significant misdemeanors” under the terms of the Act. This means that a single conviction for misdemeanor DUI could result in a denial of relief under DAPA. A felony DUI conviction is automatically a reason for denial under the Act’s felony provision.  If you are a DAPA recipient or applicant, you should consult with an immigration attorney because of the serious consequences of a DUI charge on your status. 

Defense Strategy for DACA/DAPA Recipients

The best plea for a DACA or DAPA recipient is to a non-alcohol or drug related reckless driving under VC23103.  It’s a better resolution then a DUI because it doesn’t have the same immigration consequences as a DUI or wet reckless and it is not priorable against you by the DMV or Court if you get another DUI within the next 10 years.  There is no license suspension associated with it.  A dry reckless is 2 points, a misdemeanor, and may include probation.    

F1 Student Visa holders and DUI

Your ability to remain in the U.S. on a student visa depends on you going to school and obeying the laws.  The U.S. Department of State has revved up its anti-drunk driving policy. Consulates are now instructed to automatically revoke the visas of foreign nationals who had DUI offenses after the visa holders had already arrived in the United States. The goal is to make people with DUI charges go through new medical examinations by forcing them to apply for new visas. Consulates are supposed to contact foreign nationals to inform them that their visas were revoked. In practice, consulates do not always have the most current contact information. Many foreign nationals remain unaware that their visas were revoked and do not realize what happened until they travel abroad and are then not allowed to board their international flights on the way back to the United States because of invalid visas.

A Student Visa Holder with a DUI Needs a Lawyer

If you are studying in the U.S. on a student visa, a DUI arrest can complicate matters for you. Your arrest will be entered into NCIC (National Crime Information Center) database and could cause delays in re-entering the country if you leave, causing you to miss school. Your visa application or renewal could be denied, thus ending your educational opportunities in the United States. You may be deported or “removed” from the United States and barred from readmission.  If you have been arrested for a DUI, you need to consult with an immigration attorney. 

H1B1 Work Permit and DUI

Your ability to remain in the U.S. on a work visa depends on you working and obeying the laws.  The U.S. Department of State has revved up its anti-drunk driving policy. Consulates are now instructed to automatically revoke the visas of foreign nationals who had DUI offenses after the visa holders had already arrived in the United States. The goal is to make people with DUI charges go through new medical examinations by forcing them to apply for new visas. Consulates are supposed to contact foreign nationals to inform them that their visas were revoked. In practice, consulates do not always have the most current contact information. Many foreign nationals remain unaware that their visas were revoked and do not realize what happened until they travel abroad and are then not allowed to board their international flights on the way back to the United States because of invalid visas.

A Work Visa Holder with a DUI Needs a Lawyer

If you are working in the U.S. on a work visa, a DUI arrest can complicate matters for you. Your arrest will be entered into NCIC (National Crime Information Center) database and could cause delays in re-entering the country if you leave, causing you to miss work. Your visa application or renewal could be denied, thus ending your work opportunities in the United States. You may be deported or “removed” from the United States and barred from readmission.  If you have been arrested for a DUI, you need to consult with an immigration attorney. 

Visa Application and Possible Delays: Driving Under the Influence

The Department of State (DOS) issued instructions to Consular Posts requiring consular officers to refer non-immigrant visa applicants to panel physicians for medical examinations if the applicant has:

  • A single drunk driving arrest or conviction within the last three years, or
  • Two or more drunk driving arrests or drunk driving convictions in any period of time.

The directive is not discretionary. Officers must also refer applicants to a physician if there is any other evidence to suggest an alcohol problem.  If the doctor doesn’t believe sufficient rehabilitation has occurred or if there is evidence of an alcohol problem, the visa application may be denied.  Visa applicants should have available a certified copy of arrest report and court disposition.

Travel to Canada

If you have a pending DUI or DUI conviction, you will be considered criminally inadmissible to Canada.  That means if you are traveling to Canada you will be stopped at the border and not allowed to enter.  You can overcome this through a process known as Criminal Rehabilitation which takes about 9-12 months.  To be eligible, your full sentence must have been completed more than five years prior to application submission. Criminal inadmissibility can also be overcome with a Temporary Resident Permit (TRP), which will enable a foreigner with a criminal record to become admissible to Canada for as long as three years provided they have a valid reason for entering the country.

Travel To Canada with a DUI

Travelers who require in-depth information regarding the process of applying for a waiver or other admissibility questions can reach the Canada Border Services Agency (CBSA) during regular business hours, Monday through Friday, 8:00am – 6:00pm local time, except holidays, by calling either (506) 636-5064 or (204) 983-3500.

You may also view the following links with CBSA on their waiver process:

contact our office to speak to an attorney about DUI immigration consequences

Because you have so much to lose, you need the most experienced and aggressive Defense attorney on your side. Whether it’s defending you in trial or negotiating for dismissal, you can count on us. Our experienced and aggressive negotiating efforts usually result in better outcomes for our clients including reduced charges, lesser jail days, and smaller fines. Call our office today at (916) 939-3900 to speak directly to an attorney about your DUI case. We are open 24/7/365 to answer your questions.