Guilty Until Proven Innocent: Visa Revocations at U.S. Consular Posts

No longer is a finding of guilt, or even a finding of fault, necessary for a person’s U.S. visa to be revoked. Repeated examples are taking place all over the world where U.S. consular officers are revoking the visas of foreign nationals who have been arrested for certain crimes but not convicted of, nor pled guilty to, any offense.

It is within the discretion and legal authority of the U.S. Department of State to take such actions when it comes to the attention of the agency that a person has been arrested and/or charged with a crime, even before any determination of culpability has been made by a criminal court. While this may seem contrary to the concept of “innocent until proven guilty,” it is a reality of consular practice that visas are revoked without first requiring a formal legal determination that a person has, in fact, committed a crime. The types of crimes need not be those that are violent or heinous either, nor be ones that directly involve alcohol, such as DUI.

While it has been the practice of U.S. consular officers to revoke visas for arrests involving DUIs, this trend seems to be expanding to other types of criminal issues. Again, it bears repeating that a conviction is not required for a consular officer to have legal authority to revoke a person’s visa. The notice of revocation is usually received via email, and will sometimes go to a person’s spam folder. It is often not until the person arrives at an airport and attempts to board a flight to the United States that he or she is made aware that there is an issue with the visa.

Even where a foreign national is accused of committing a crime that is not related to drugs or alcohol, the fact that an arrest took place at a place such as a bar could cause the person’s visa to be revoked and subject him to additional scrutiny and lengthy processing outside the United States. In such circumstances, a person may be required to appear before a panel physician in his or her home country for an examination, which regularly includes psychological testing as well as drug testing, and may leave a person unable to return to the United States for days or weeks, potentially jeopardizing his job in the United States if he has a work visa.

Inability to travel to the United States could also affect a person’s ability to defend himself before a criminal court in the United States for charges filed here. For example, if a person is arrested in the United States and departs the country voluntarily, his visa may be revoked upon departure. If, thereafter, he must appear in criminal court in the United States to defend himself against these very same charges, he may find himself unable to legally do so because of the visa revocation that prevents him from entering the country.

Whenever a foreign national has any encounter with law enforcement in the United States or anywhere in the world, it is vital that he be represented by criminal defense counsel who can advise him as to criminal liability, as well as immigration counsel who can advise him on the impact, if any, that an accusation may have on his ability to travel into the United States for business or pleasure.

For more immigration insights, visit our blog KnowingImmigrationLaw.