Dealing with a DUI/DWI: Revocation of Status

An arrest or conviction for driving under the influence (DUI) or driving while intoxicated (DWI) may mean big problem for those in the United States under a nonimmigrant visa. Once a U.S. consulate receives notice of the conviction of an alien for a DUI or DWI offense, consular officers will revoke the visa foil or “stamp.” Under most circumstances, an alien convicted of a crime with a maximum penalty of one year will undergo revocation processes. However, with DUIs and DWIs in particular, U.S. consulates may revoke a visa if “an ineligibility or lack of entitlement is suspected, or for virtually any other reason.” Meaning, those arrested, although not convictedfor DUI or DWI, may receive a notice of cancelled visa foil while consular officers determine whether a nonimmigrant is still eligible for their visa.

Visa Revocation

When a person enters the United States, they typically enter lawfully through a nonimmigrant visa stamp issued at a consulate abroad. If that individual is arrested or convicted for a DUI or DWI, the visa stamp is revoked by a U.S. consulate officer under prudential revocation. Thus, the visa foil will no longer be valid, and that individual would not be able to re-enter the U.S. the next time they travel abroad. The consulate should contact the individual once the visa foil has been revoked through email or phone. However, if the U.S. consulate is unable to contact the foreign national, the visa foil may be invalid without the individual’s knowledge making the visa ineligible for future re-entry.

Legal Status

A DUI or DWI will not change the legal status of the foreign national who has been arrested or convicted of a DUI or DWI, as long as they continue to maintain their status in the U.S. Primarily, revocation of a visa stamp impacts a foreign national’s ability to travel outside of the United States and return back using the existing visa. Therefore, those with prudentially revoked visas following a DUI or DWI must be sure to maintain their non-immigrant status.  To travel with a prudentially revoked visa, a foreign national must obtain a new visa to return to the U.S. after a trip abroad.

UPDATE: Student Visa Change of Status (F-1/ M-1)

Early last month, USCIS updated guidelines for nonimmigrants wishing to change status to F-1/M-1. For nonimmigrants in valid, non-student status, the lengthy approval process for both F-1 and M-1 presents a number of issues. One such issue occurs when a nonimmigrant undergoing the change of status process to F-1/M-1 experiences a lapse of their current non-student status. Previously, this issue primarily impacted those in B-1 or B-2 status, who had to adhere to strict guidelines to maintain status. However as of February 6th, changing to student status (F-1 or M-1) from any immigration status, just became a lot more difficult.

Change of Status

Typically, subject to certain exceptions, federal regulations prohibit studying in the U.S. under a non-student status. Therefore, to legally study in the U.S., nonimmigrants must obtain either F-1 or M-1 status. Those who are eligible to apply for a change of status to a F-1 or M-1 must have entered the U.S. legally, maintained valid immigrant status, and not have committed a crime or action to invalidate their current status. To apply for student status, individuals must be accepted into an approved institution, obtain a Form I-20 from the approved institution, pay necessary fees, and submit a Form I-539 application to change nonimmigrant status. However, completing these steps will not guarantee a valid student status. Until USCIS approves an application for student status, a foreign national may not enroll in a higher education institution regardless of their acceptance. Due to a series of backlogs, the approval process may take several months, jeopardizing those with who may experience a lapse in status during the change of status application process.

Gap in Status

To be eligible to study in the U.S., the revised USCIS policy requires that all nonimmigrants changing to a student status maintain their valid nonimmigrant status from the date the Form I-539 was filed until at least 30 days before the start date of their educational program. In the past, this policy only applied to B-1 or B-2 visa holders. This change in policy could have a significant effect on current foreign nationals with intent to study in the U.S. due to extremely long processing times for student visas. For example, an H-4 beneficiary currently attending the school in H-4 status but who will soon turn 21 and be eligible to stay in H-4 status wishes to continue attending school in F-1 status.  He applied for a change of status to F-1, and his H-4 will remain valid within 30 days of the start of the program. However, because processing times for F-1 can be up to 10 months, the individual would have to file a separate Form I-539 to change into a different status like B-1/B-2 to “bridge the gap” of his status. This change in USCIS policy will create an even greater burden on nonimmigrants who may wish to further their education while in the U.S. and will increase the case load of USCIS officers who adjudicate these applications. 

B-1 or B-2 Visa to Student Visa: Navigating New Road Blocks

For those with B-1 or B-2 status who wish to study in the United States, the process for change of status to a F or M visa can be especially challenging. According to federal regulation, those is B-1 or B-2 status may not study in the U.S. Previously, those in B-1 or B-2 status could submit a Form I-539 change of status application, in addition to a valid Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) and would typically receive approval from USCIS before the start of a new semester. However in Spring of 2017 due to increased processing times, USCIS provided new guidance that outlines additional requirements for those with B-1 or B-2 status to obtain student visas.

New Guidelines

In addition to obtaining an approved change of status application and valid Certificate of Eligibility for Nonimmigrant Student Status, individuals wishing to enroll in school in the U.S. must satisfy several other requirements. According to USCIS, beneficiaries of B-1 or B-2 status are required to have maintained lawful status at the time of filing the Form I-539 change of status application with USCIS. Additionally, one must maintain their B-1 or B-2 status while the Form I-539 is pending with USCIS and up to 30 days before the initial F-1 or M-1 program start date. Therefore, if a person’s B-1 or B-2 status expires 35 days before the first day of their academic program, USCIS will deny the Form I-539 application to change status to a F or M visa. To avoid this situation, an additional Form I-539 application to extend either B-1 or B-2 status must be filed in addition to the Form I-539 application to change status to a that of a student. USCIS also indicates that an applicant wishing to change status to an F or M visa must submit an extension for B-1 or B-2 visa if USCIS defers approval for the I-539 adjustment of status after the student’s intended start date.

Applications Filed Before April 2017

If the application to adjust status from B-1 or B-2 visa to a F or M student visa was submitted before April 6, 2017 USCIS, and the B-1 or B-2 visa expired before the 30-day cut off, USCIS may send a RFE requesting the applicant to submit a late (retroactive) Form I-539 to extend B-1 or B-2 status if:

  • The delay was due to extraordinary circumstances beyond the control of the applicant and USCIS finds the delay commensurate with the circumstances;
  • The applicant has not otherwise violated his or her nonimmigrant status;
  • The applicant remains a bona-fide non immigrant;
  • The applicant is not the subject of deportation proceedings under section 242 of the Immigration and Nationality Act (INA) or removal proceedings under section 240 of the INA.

Additionally, the applicant must obtain a certified Form I-20 that indicates the start day of the approved program.