DUI Arrest

[lrock1111 0]

When my fiance was working in the States, he was arrested for DUI. He pleaded guilty, & received deferred adjudication, which I understand is different than a conviction.

I was reading in a Fiance Visa book I bought that "if you've been convicted of a crime involving alcohol, even if the crime doesn't make you inadmissable, that USCIS can argue that it is a sign that you have a mental or physical disorder associated with harmful behavior and therefore inadmissable on health rather than criminal grounds".

Our application is filed, so I'm guessing only time will tell, but I am wondering if anyone out there has experience with a similar situation or any info that will hopefully ease my mind.

Thanks guys & Good Luck!

[Dan J 277]

When my fiance was working in the States, he was arrested for DUI. He pleaded guilty, & received deferred adjudication, which I understand is different than a conviction.

I was reading in a Fiance Visa book I bought that "if you've been convicted of a crime involving alcohol, even if the crime doesn't make you inadmissable, that USCIS can argue that it is a sign that you have a mental or physical disorder associated with harmful behavior and therefore inadmissable on health rather than criminal grounds".

Our application is filed, so I'm guessing only time will tell, but I am wondering if anyone out there has experience with a similar situation or any info that will hopefully ease my mind.

Thanks guys & Good Luck!

You do have to disclose it, but you one event shouldn't make your fiance inadmissible.

[kitkat1 5]

You should consult with a qualified attorney BEFORE the interview to understand how this might impact you. When it happened is an important detail.

R 072132Z JUN 07

FM SECSTATE WASHDC

TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE

RUEHTRO/AMEMBASSY TRIPOLI 3805

BT

UNCLAS STATE 079496

E.O. 12958: N/A

TAGS: CVIS, CMGT

SUBJECT: GUIDANCE ON PROCESSING VISA APPLICANTS WITH DRUNK DRIVING HITS

1. Summary: This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence. End summary.

2. Posts generally become aware of drunk driving arrests and convictions after receiving the results of fingerprints taken when an applicant has a CLASS hit. While a drunk driving conviction is not a statutory visa ineligibility, a conviction may indicate that further investigation is needed to determine whether the applicant may in fact be ineligible under Section 212(a)(1)(A)(iii). This applies to applicants who have a physical or mental disorder and demonstrate behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.

3. In the case of IV applicants, consular officers must refer the applicant back to the panel physician for additional evaluation. Physicians are evaluating for the presence of a mental disorder previously unnoticed before the physician became aware of the alcohol-related arrest. NIV applicants that have hits with evidence of an alcohol-related arrest or conviction must be referred to panel physicians for evaluation. This must be done even if the panel physician is physically located in another city.

4. After consulting with the Center for Disease Control and Prevention, we have determined that consular officers must refer applicants to panel physicians in two circumstances: (1) an applicant has a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or (2) convictions in any time period. Consular officers must also refer applicants to panel physicians if there is any other evidence to suggest an alcohol problem. Consular officers must adhere strictly to these guidelines in determining when a panel physician referral is appropriate.

5. For a finding of eligibility under Section 212(a)(1)(A)(iii), there must be two criteria established by the panel physician: (1) diagnosis of mental disorder (alcohol abuse) and (2) current harmful behavior associated with the mental disorder or a history of harmful behavior associated with the mental disorder that is judged likely to recur in the future. Consular officers should be aware that neither alcohol abuse or (DWI) drunk driving are sufficient grounds for an ineligibility finding under Section 212(a)(1)(A)(iii), a panel physician evaluation is required.

6. Section 9 FAM 40.11 N8.3 will be updated as follows:

While alcoholism constitutes a medical condition, INA 212(a)(1)(A)(iii) does not refer explicitly to alcoholics or alcoholism. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior. An alcoholic is not ineligible to receive a visa unless there is harmful behavior associated with the disorder that has posed, or is likely to pose, a threat to the property, safety, or welfare of the alien or others. To ensure proper evaluation, [you must refer applicants to panel physicians when they have a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or convictions in any time period. You also must refer cases to a panel physician if there is any other evidence to suggest an alcohol problem.

RICE

[lrock1111 0]

1. 
   

You should consult with a qualified attorney BEFORE the interview to understand how this might impact you. When it happened is an important detail.

R 072132Z JUN 07

FM SECSTATE WASHDC

TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE

RUEHTRO/AMEMBASSY TRIPOLI 3805

BT

UNCLAS STATE 079496

E.O. 12958: N/A

TAGS: CVIS, CMGT

SUBJECT: GUIDANCE ON PROCESSING VISA APPLICANTS WITH DRUNK DRIVING HITS

1. Summary: This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence. End summary.

2. Posts generally become aware of drunk driving arrests and convictions after receiving the results of fingerprints taken when an applicant has a CLASS hit. While a drunk driving conviction is not a statutory visa ineligibility, a conviction may indicate that further investigation is needed to determine whether the applicant may in fact be ineligible under Section 212(a)(1)(A)(iii). This applies to applicants who have a physical or mental disorder and demonstrate behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.

3. In the case of IV applicants, consular officers must refer the applicant back to the panel physician for additional evaluation. Physicians are evaluating for the presence of a mental disorder previously unnoticed before the physician became aware of the alcohol-related arrest. NIV applicants that have hits with evidence of an alcohol-related arrest or conviction must be referred to panel physicians for evaluation. This must be done even if the panel physician is physically located in another city.

4. After consulting with the Center for Disease Control and Prevention, we have determined that consular officers must refer applicants to panel physicians in two circumstances: (1) an applicant has a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or (2) convictions in any time period. Consular officers must also refer applicants to panel physicians if there is any other evidence to suggest an alcohol problem. Consular officers must adhere strictly to these guidelines in determining when a panel physician referral is appropriate.

5. For a finding of eligibility under Section 212(a)(1)(A)(iii), there must be two criteria established by the panel physician: (1) diagnosis of mental disorder (alcohol abuse) and (2) current harmful behavior associated with the mental disorder or a history of harmful behavior associated with the mental disorder that is judged likely to recur in the future. Consular officers should be aware that neither alcohol abuse or (DWI) drunk driving are sufficient grounds for an ineligibility finding under Section 212(a)(1)(A)(iii), a panel physician evaluation is required.

6. Section 9 FAM 40.11 N8.3 will be updated as follows:

While alcoholism constitutes a medical condition, INA 212(a)(1)(A)(iii) does not refer explicitly to alcoholics or alcoholism. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior. An alcoholic is not ineligible to receive a visa unless there is harmful behavior associated with the disorder that has posed, or is likely to pose, a threat to the property, safety, or welfare of the alien or others. To ensure proper evaluation, [you must refer applicants to panel physicians when they have a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or convictions in any time period. You also must refer cases to a panel physician if there is any other evidence to suggest an alcohol problem.

RICE

Thank you so much for this info...it's reassuring but I think you are right- we will still call an attorney.

THanks again & Good Luck!

[William33 110]

When my fiance was working in the States, he was arrested for DUI. He pleaded guilty, & received deferred adjudication, which I understand is different than a conviction.

I was reading in a Fiance Visa book I bought that "if you've been convicted of a crime involving alcohol, even if the crime doesn't make you inadmissable, that USCIS can argue that it is a sign that you have a mental or physical disorder associated with harmful behavior and therefore inadmissable on health rather than criminal grounds".

Our application is filed, so I'm guessing only time will tell, but I am wondering if anyone out there has experience with a similar situation or any info that will hopefully ease my mind.

Thanks guys & Good Luck!

Back up a sec folks. To the OP, What was the outcome of the "deferred adjudication"? Expunged? Convicted?

For example, if expunged, it never happened. All other outcomes require disclosure.

More detail required from the Original Poster (OP). Please advise.

[TinTin and Samby 11]

When my fiance was working in the States, he was arrested for DUI. He pleaded guilty, & received deferred adjudication, which I understand is different than a conviction.

I was reading in a Fiance Visa book I bought that "if you've been convicted of a crime involving alcohol, even if the crime doesn't make you inadmissable, that USCIS can argue that it is a sign that you have a mental or physical disorder associated with harmful behavior and therefore inadmissable on health rather than criminal grounds".

Our application is filed, so I'm guessing only time will tell, but I am wondering if anyone out there has experience with a similar situation or any info that will hopefully ease my mind.

Thanks guys & Good Luck!

Back up a sec folks. To the OP, What was the outcome of the "deferred adjudication"? Expunged? Convicted?

For example, if expunged, it never happened. All other outcomes require disclosure.

More detail required from the Original Poster (OP). Please advise.

I know that there are instances when even a sealed and/or expunged criminal record is required to be divulged. I thought I recalled reading that some of those instances are related to Immigration processes. However, I do not have enough knowledge to say which, if any, of these are included. Can some of you VJers with more specific knowledge or legal experience comment on this? Thanks.

Warm Regards,

Samby

[caro06 0]

i think you have to refer it in the case of 3 DUIs...

that's what i've read in the I129 petition instructions...

[lrock1111 0]

When my fiance was working in the States, he was arrested for DUI. He pleaded guilty, & received deferred adjudication, which I understand is different than a conviction.

I was reading in a Fiance Visa book I bought that "if you've been convicted of a crime involving alcohol, even if the crime doesn't make you inadmissable, that USCIS can argue that it is a sign that you have a mental or physical disorder associated with harmful behavior and therefore inadmissable on health rather than criminal grounds".

Our application is filed, so I'm guessing only time will tell, but I am wondering if anyone out there has experience with a similar situation or any info that will hopefully ease my mind.

Thanks guys & Good Luck!

Back up a sec folks. To the OP, What was the outcome of the "deferred adjudication"? Expunged? Convicted?

For example, if expunged, it never happened. All other outcomes require disclosure.

More detail required from the Original Poster (OP). Please advise.

I guess I don't know that much about the law...he said he got the DWI in Texas 6 years ago & that the court gave him deferred adjudication- he took all the classes & did the community service in a prompt manner. I don't believe it has been expunged, but like I said, I don't know the law that well. He was originally here on an L1 Visa & had that renewed after his run-in with the law so I'm hoping it won't affect the outcome of the K1 decision.

I'm thinking it is best to disclose it to USCIS, it would be way worse if they found out we were lying about/hiding something. I was just wondering if anyone knew any details/had experience or advice.

Any thoughts?

[pushbrk 12,898]

When my fiance was working in the States, he was arrested for DUI. He pleaded guilty, & received deferred adjudication, which I understand is different than a conviction.

I was reading in a Fiance Visa book I bought that "if you've been convicted of a crime involving alcohol, even if the crime doesn't make you inadmissable, that USCIS can argue that it is a sign that you have a mental or physical disorder associated with harmful behavior and therefore inadmissable on health rather than criminal grounds".

Our application is filed, so I'm guessing only time will tell, but I am wondering if anyone out there has experience with a similar situation or any info that will hopefully ease my mind.

Thanks guys & Good Luck!

Back up a sec folks. To the OP, What was the outcome of the "deferred adjudication"? Expunged? Convicted?

For example, if expunged, it never happened. All other outcomes require disclosure.

More detail required from the Original Poster (OP). Please advise.

I guess I don't know that much about the law...he said he got the DWI in Texas 6 years ago & that the court gave him deferred adjudication- he took all the classes & did the community service in a prompt manner. I don't believe it has been expunged, but like I said, I don't know the law that well. He was originally here on an L1 Visa & had that renewed after his run-in with the law so I'm hoping it won't affect the outcome of the K1 decision.

I'm thinking it is best to disclose it to USCIS, it would be way worse if they found out we were lying about/hiding something. I was just wondering if anyone knew any details/had experience or advice.

Any thoughts?

I don't see a need to go out of your way to disclose anything but answer all written and verbal questions that come up during the process as accurately, completely and honestly as possible.

[rebeccajo 14]

This arrest is in the US....not in the beneficiaries country.........

Kitkat, is this treated differently insofar as waivers?

[kitkat1 5]

This arrest is in the US....not in the beneficiaries country.........

Kitkat, is this treated differently insofar as waivers?

I don't know -- my limited understanding of "criminal" charges is that it depends on how it's treated in legally the US. But given that it was more than 5 years ago, it doesn't appear to be a problem. If anything, my impression is that it could come up at the consular interview, but again, doesn't appear that it would be an issue. Consult with a good attorney would hopefully clarify.

[whisper2me 0]

This arrest is in the US....not in the beneficiaries country.........

Kitkat, is this treated differently insofar as waivers?

I don't know -- my limited understanding of "criminal" charges is that it depends on how it's treated in legally the US. But given that it was more than 5 years ago, it doesn't appear to be a problem. If anything, my impression is that it could come up at the consular interview, but again, doesn't appear that it would be an issue. Consult with a good attorney would hopefully clarify.

I thought I read in Laurel Scott's chat logs (www.immigrate2us.net), that the consequences/seriousness of the crime committed is viewed by the Consulate in terms of the law in which the crime took place. If the DUI took place in the states then it would be viewed according to Texas law, but if in another country, it would be based on that particular countrys' law. Thats how i understood it to be anyway.