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The Department of State has recently issued a cable, "Guidance On Processing Visa Applicants With Drunk Driving Hits" (AILA InfoNet Doc. No. 07071670 (posted Jul. 16, 2007);), requiring consular officers to refer nonimmigrant visa applicants with prior drunk driving issues to panel physicians for medical examination in the following circumstances: (1) if an applicant has a single drunk driving arrest or conviction within the last three calendar years, or (2) if the applicant has two or more drunk driving arrests or drunk driving convictions in any time period. Consular officers must now also refer applicants to panel physicians if there is any other evidence to suggest an alcohol problem (emphasis added). The directive is not discretionary. For example, it is now likely that an arrest for public intoxication at any time could trigger this new directive.
The new text revision, to be placed at 9 FAM 40.11 N8.3, will read: Alcohol Dependence (Alcoholism) or Alcohol Abuse 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. The italicized language above, which is noteworthy for its focus on arrests rather than only convictions, replaces the following language in the current FAM note regarding alcoholism: For example, CDC has determined that a conviction for driving while under the influence of alcohol would constitute evidence of a medical disorder with associated harmful behavior. Interestingly, we are unable to find such a CDC determination in current CDC guidelines to panel physicians. Nonimmigrant visa applicants disclosing an alcohol arrest in the U.S. will also have to undergo National Crime Information Center (NCIC) processing which requires the applicant to pay an $85 fee for fingerprinting and wait for the FBI record results (which can take 1-2 days at posts with electronic fingerprint processing or up to 2 months for posts that capture fingerprints with ink).1 Applicants with alcohol related arrests inside or outside of the U.S. are advised to be careful to fully disclose the incident. Some consulates have and use independent access to records of local DUI proceedings. DOS can choose to subject an applicant to fingerprinting and NCIC check for other reasons, and such submission would likely reveal an arrest. Failure to disclose the event on Form DS-156 could lead to a misrepresentation finding and inadmissibility on that basis, even if the convictions or arrests do not lead to a Class A determination, given the Department of State's interpretations concerning inadmissibility. Visa applicants should have available a copy of the arrest report, certified court disposition, and if possible a declaration and accompanying legal brief. Declarations from the applicant and others who are familiar with his/her good moral character would be helpful. While we are still awaiting confirmation from the Visa Office, clients who are planning to apply for visa renewal should be warned that their existing valid visas will likely be cancelled if the applicant is referred to a panel physician for a determination of alcohol abuse or dependence. The transparency of the directive leads thoughtful lawyers and their clients to consider streamlining the process by trying to arrange the inevitable panel physician's consideration of the criminal record before the visa interview, avoiding a subsequent referral and re-interview. In the immigrant visa context, this is a matter of clearly calling the criminal record to the attention of the panel physician and requesting that the medical report clearly refer to and draw conclusions arising from each incident in the record, so that the consular officer can be sure that each incident was considered. Of course, incidents discovered only through the consulate's NCIC or other report will require referral (and risk misrepresentation ineligibility). In the nonimmigrant context, there is not a clear procedure for pre-interview medical exam, but advocates' efforts to make arrangements with posts may lead to transparent procedures over time. As the State Department moves more toward fully electronic visa submissions, answers triggering panel physician reports may lead to automatic scheduling of medical examinations preceding visa interview. The medical examination is to be conducted in accordance with the Center for Disease Control's current Technical Instructions for the Medical Examination of Aliens ("The Technical Instructions"), which are published at http://www.cdc.gov/NCIDOD/DQ/pdf/ti-alien.pdf. Under the guidelines, the medical exam must include, in addition to a physical exam, (1) a medical history, obtained by the panel physician or a member of the physician's professional staff, from the applicant (preferably) or a family member, which includes specific questions about psychoactive drug and alcohol use, history of harmful behavior, and history of psychiatric illness not documented in the medical records reviewed; and (2) a review of any other records that are available to the physician (e.g., police, military, school, or employment) and that may help to determine a history of harmful behavior related to a physical or mental disorder and to determine whether illnesses or disabilities are present that result in a substantial departure from a normal state of well-being or level of functioning. The four essential components of the exam's conclusion about alcohol include: 1. Has there been a mental condition/disorder (alcohol abuse)? 2. Has the condition been associated with harmful behavior? 3. Is the mental condition currently present? 4. If so, is harmful behavior likely to recur? The panel physician will issue a report concluding whether or not the applicant has a Class A condition or Class B condition. Even when the physician determines that the applicant has had a condition resulting in harmful behavior, the report should reflect no Class A or B condition if the physician concludes that the condition is not currently present and harmful behavior is not likely to recur. If the panel physician finds that the applicant's current condition is associated with harmful behavior and that the harmful behavior is likely to recur, a Class A determination must be made, rendering the applicant ineligible to receive a visa under INA 212(a)(1)(A). In an extraordinary circumstance, the consular officer may be persuaded to request review by the CDC in the United States. The State Department considers medical examination reports "confidential" and refuses to release them in response to Freedom of Information Act or other requests, but applicants may request from the consulate more specific reasons for the denial that is based on a medical report. While technically such applicants may be eligible for a 212(d)(3) nonimmigrant waiver, it would appear to be difficult to obtain a waiver recommendation by a consular officer or the Visa Office when the alien has recently been found inadmissible because of harmful behavior that is likely to recur. If the panel physician finds that there is a current condition but no history of harmful behavior, or that there has been a condition associated with harmful behavior but the condition is controlled by medication, is in remission or harmful behavior is not likely to recur, a Class B determination can be made, normally resulting in the applicant being found admissible. The guidelines state: The behavior can be judged not likely to recur if the alien is able to demonstrate that the disorder is in remission, remission being defined as no pattern of the behavioral element of the disorder for the past 2 years (5 years in the case of antisocial personality disorder, impulse control disorders not otherwise classified, paraphilias that involve behaviors that threaten others, and conduct disorders); or the alien's condition is controlled by medication and the alien certifies in writing that he or she will continue medication or other treatment to control the disorder and prevent harmful behavior. In all likelihood, if a Class A determination is not made, a Class B determination is unlikely in relation to a DUI history. Some panel physician recommendations can take several weeks and some might refer the applicant to a psychiatrist for further evaluation (as the physician deals with the physical side of excessive drinking as opposed to the mental review done by a psychiatrist). The Department of State does not involve itself in how the panel physician analyzes for a Class A medical condition, and the CDC (Public Health Service) guidelines to panel physicians are not very specific in relation to alcohol issues. Applicants can expect varying approaches from panel physicians, ranging from oral discussions with the applicant about the incidents involved to extensive medical tests for indicia of alcohol dependency.
1. DOS is working to implement 10 print fingerprinting and NCIC checks in all visa applications by the end of calendar year 2007 and states that NCIC results in pilot posts have returned within less than a half hour.
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