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Erickson in the News: Drunk Driving Is More Than an Arrest for Foreign Workers

October 30, 2017

Driving under the influence could have particularly serious consequences for temporary foreign workers and the businesses that employ them.

The situation is ‘‘somewhat fluid,’’ so ‘‘we’re not feeling the impact yet,’’ Jerry Erickson of the Erickson Immigration Group told Bloomberg Law Oct. 27. The immigration consequence stemming from a DUI ‘‘has always been there,’’ but it could ‘‘create some havoc down the road for some people,’’ he said. Erickson is an immigration management services company based in Arlington, Va.

A DUI arrest in the U.S. or abroad can cause delays in processing and even visa denials, leaving businesses without essential employees.

‘‘Employers are searching for a level of consistency in a very uncertain environment,’’ Ian MacDonald of Greenberg Traurig LLP told Bloomberg Law Oct. 18. ‘‘We’ve gotten to the place now where employers are just very frustrated with the entire process.’’

State Department, USCIS Involved The State Department’s policy since November 2015 has been to revoke a visa if there was a DUI arrest in the U.S. in the past five years, unless it was already addressed in the context of a visa application, an agency official said in a press statement to Bloomberg Law Oct. 25.

‘‘The Department takes seriously drunk driving/ driving under the influence, driving while intoxicated, and similar arrests (DUI’’ arrests),’’ the official said in an email. ‘‘It is both a public safety issue and evidence of a possible visa ineligibility.’’

U.S. consulates had already been flagging visa applicants for medical exams by a physician on a preapproved panel if they had a DUI arrest or conviction within the past five years, or two or more alcohol-related arrests within the past 10 years.

But now U.S. Citizenship and Immigration Services has gotten involved when it comes to temporary visa holders, said MacDonald, co-chair of Greenberg Traurig’s International Employment, Immigration & Workforce Strategies group.

The USCIS is denying requests for a change of status or extension of status if the worker has been arrested for DUI, MacDonald said. The requests allow a worker on a temporary visa to change to a different temporary visa or extend his or her visa without having to leave the U.S.

The Trump administration ‘‘has taken a hard-line approach to individuals who have some kind of DUI or alcohol-related offense,’’ he said.

A USCIS spokeswoman told Bloomberg Law Oct. 24 that the agency hasn’t changed its policy in this area.

Medical Exam Needed But the denials mean that anyone who needs to change or extend temporary immigration status has to leave the U.S. and get a visa stamp from a U.S. consulate, MacDonald said.

The consulates then apply their DUI policy of referring the visa applicant to a panel physician to determine if he or she has a physical or mental disorder associated with alcohol, he said.

MacDonald said he’s concerned that ‘‘people will unwittingly fall into a really challenging situation, particularly if there’s no notice that their visa was revoked.’’ DUI is ‘‘one of the most common arrests’’ a person can get, he said.

In 2016, more than 1 million people were arrested for driving under the influence, according to FBI statistics. It’s too early to tell whether any of the workers who appear before the physicians are having their visas denied, MacDonald said. At the very least, having to appear before a panel physician can cause delays of up to eight weeks, he said.

BY LAURA D. FRANCIS

 

(Reproduced with permission from Daily Labor Report, 207 DLR 13 (Oct. 27, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.)