It has become an increasingly alarming practice, now more than ever, for the Department of State to cancel or revoke a foreign national’s visa while they are currently in the US. This is becoming a common policy, for example, if the Department of State receives information that an individual who has been granted a non-immigrant visa has been arrested or convicted of a DWI or DWI related offense. The person may, depending on the circumstances, receive an unexpected phone call or email from the consulate advising that his/her non-immigrant visa has been cancelled. The individual, of course, should confirm that the communication is valid. However, assuming that it is, the next troubling question is whether the person is here illegally.
Technically, after the person has been admitted to the US, he is authorized to stay in the US for the duration of the time granted by Customs and Border Protection, which is a different agency than the Department of State. Unless and until Immigration and Customs Enforcement (ICE) or the Immigration Court gets involved and determines differently, the person has already been determined to be admissible to the US, notwithstanding the consulate’s opinion. Having valid status in the US is different and to be distinguished from having a visa to come to the US. They are not necessarily the same thing. A person can be legally in the US even though the visa may no longer be valid. The problem, however, is that should the visa be cancelled, the individual will no longer have a valid means to return to the US. Once the person leaves, the person must go back to the US consulate in his/her native country to reapply for a visa. Depending on the reason why the visa was revoked in the first place, he or she may or may not qualify for a new visa. For instance, people who have been arrested for a DWI have been notified that their visas are cancelled. This does not necessarily mean that the person is inadmissible to the US, or that the person may never receive a visa. It does mean, however, that he or she will likely have to appear for medical examination before a panel physician as part of the visa application process. As part of the examination, the panel physician will need to determine whether the applicant has an alcohol dependency condition/disorder that may pose a danger to him/herself or others. (This is assuming, of course, that any convictions have not triggered criminal grounds of inadmissibility.). It is also worth mentioning that an individual must always be mindful of “unlawful presence” which is a different but important concept (beyond the scope of this discussion) in evaluating what the prospects of return are.
As hopefully illustrated, immigration law is incredibly technical and complicated. With so many different agencies having a say over a foreign national’s ability to come and stay here, Non-US citizens who have issues should seriously consider discussing them with a professional who can properly evaluate the optics and seriousness of the situation.
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