Can H-1B worker with DUI and expired visa travel to a conference?

A look at the complexities that alcohol-related arrests introduce when renewing a visa.

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Question

I'm working in the U.S. on an H-1B visa and just got pulled over for drunk driving. My status is valid, but my visa expired. My employer asked me to attend a conference in Europe. My home country is in Asia. Can I get a new H-1B visa at the U.S. Embassy in London, for example?

Answer

Alcohol-related arrests can become rather complex with regard to their immigration consequences. The following information provides general information. You'll want to consult an immigration attorney to review the facts of your situation. And to protect your confidentiality, find your own attorney, rather than contacting the attorney who handled the H-1B petition. The attorney who handled the H-1B petition may have been representing both you and your employer. Therefore, to avoid putting that attorney in a potential conflict of interest situation, e.g. if you do not want your employer to know about the drunk driving arrest, you'll want to talk with another attorney.

At a minimum, the drunk-driving charge will cause a delay in your visa application processing. Whenever there has been an alcohol-related conviction, such as Public Intoxication, Driving Under the Influence (DUI), or Operating a Vehicle under the Influence (OVI), the State Department protocols require the consular officer to refer you (the visa applicant) to a "panel physician" (i.e. local doctor).

The physician will perform an examination to determine whether you have an alcohol dependency problem. If the conviction was within a year, the physician will indicate that you have not shown sufficient rehabilitation. That will lead to the consular officer denying your visa application on health-related grounds. Therefore, based upon what you describe, if you just recently were arrested, applying for the visa this summer is too soon. You'll want to delay applying for the visa until it's been more than a year since the alcohol-related conviction or final case disposition, if you go through some type of court-ordered diversion program.

When you reach the one-year period, be sure to obtain a complete, court-certified copy of the final case disposition before leaving the United States. It also is a good idea to have copies all related documents, such as the police ticket or similar documents that explain the criminal charge(s), and relevant statutes for the crime(s) and penalties. The consular officer will want to review those documents before issuing your visa.

Finally, it's important to be honest about the drunk-driving charge on the visa application form and in responding to questions from the consular officer. If you have any type of criminal conviction but do not mention it, the consular officer may deny the visa application based upon a misrepresentation, i.e. for lying. Consular officers take misrepresentations very seriously. It could be that the conviction would not cause the officer to deny the visa but failing to provide information about it would.

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