Visa issuance and admission to the United States have always required consulates and border officials to determine that the applicant not only qualifies for the visa classification being sought (such as F-1, H-1B, L-1, O-1, etc.), but also that the applicant is not “inadmissible” based on various grounds of inadmissibility to the U.S., including criminal offenses and health-related issues. A visa applicant who has a record of arrest or conviction for criminal activity, for example, may be denied the visa or would be required to provide evidence to overcome the inadmissibility.

An arrest that occurs after a foreign national has received the visa and is in the U.S. can still have serious consequences on the visa and nonimmigrant status. In 2015, the State Department, which operates consular posts, introduced the “prudential visa revocation” device for DUI/DWI arrests – an existing nonimmigrant visa stamp may now be prudentially revoked by the consular post or the Visa Office in D.C. if they receive law enforcement reports of a nonimmigrant’s arrest. This can happen with or without the foreign national’s knowledge – the consulate that initially issued the visa is supposed notify the foreign national (via the contact information provided in the DS-160 form), but in practice, notice does not always reach him/her.

Note that consulates are authorized to initiate prudential revocation based on arrest only – even if the charges are eventually dropped, expunged, or result in probation, the consulate may prudentially revoke the visa; a conviction or determination of guilt is not necessary.

The effect of a prudential visa revocation primarily attaches once the foreign national departs from the U.S. Even if the visa stamp in his/her passport is unexpired, it is no longer considered valid. If the arrest was for DUI or DWI, and the foreign national departs the U.S., s/he will be required to undergo screening by a panel physician before being allowed to reapply for the visa abroad, as these offenses fall under the health-related inadmissibility ground.

Since it was introduced, prudential revocation has primarily been limited to DUI/DWI arrests, and the consequences, as mentioned, attached at departure from the U.S. – an existing I-94 would still be considered valid, and the foreign national could apply for an extension or change of status within the U.S. However, in recent months, there have been reports of expansion in the scope and effect of prudential revocation. DOS has confirmed recently that it “prudentially revokes a visa when it receives information that a visa holder has been arrested for any crime, including domestic violence, that may result in a visa ineligibility.” There have also been reports that applications for extension or change of status being issued Requests for Evidence or denials based on the prudential revocation of a visa due to arrest.

Nonimmigrant visa holders are therefore urged to consult their immigration attorney immediately if they are arrested for any criminal matter. While many retain a criminal attorney, criminal lawyers are often unaware of the immigration consequences of an arrest, particularly if the charges are dropped or expunged. Affected nonimmigrants should discuss with immigration counsel in order to assess the risks of international travel and of filing applications with USCIS, and to determine the best strategy to overcome a revocation.

By Rebecca Chen

Rebecca is a partner at Reddy & Neumann and has been with the firm since 2009. Her practice includes non-immigrant and immigrant visa petitons