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Will New Jersey Drunk Driving (39:4-50) Affect H-1B Stamping?

| Apr 1, 2019 | Criminal Law & Municipal Court, Visa Issues

This is a very common question that we deal with in the ordinary course of our business. Unfortunately, it is also one that is extremely complex and heavily dependent on a number of factors, including but not limited to the nature of the offense; one’s immigration history; as well as one’s criminal history. In general, in this climate, any arrest-even for offenses which may not be deportable-can potentially have an impact on one’s immigration stay here.

The subject of H-1B “stamping” typically occurs when an individual does not have the actual H-1B visa in his/her passport. This might have happened because the individual changed his/her status to H status; however, USCIS does not have the authority to grant visas, only status. As a result, if an individual in H status leaves the US, he/she will need to apply at the US consulate abroad for the H-1B visa-or what some colloquially call “stamp.” Once a person leaves the United States, we are talking about a different set of rules, arguably more stringent than if the individual remained inside the country.

Having a DWI arrest, or worse, conviction can potentially complicate matters because the charge must normally be disclosed during the visa application process. The issue then becomes whether the charge is a basis of inadmissibility to deny the visa. There are two potential grounds of inadmissibility implicated here: one, whether the offense constitutes a crime involving moral turpitude and two, whether the offense is a medical ground of inadmissibility. If the consular officer suspects that there is harmful behavior that poses, has posed, or is likely to pose a threat to the property, safety, or welfare of the applicant or others, the applicant may require the visa applicant to be re-examined by a panel physician. Having a record of arrests for alcohol related driving incidents may constitute evidence of health issue or disorder associated with harmful behavior.

Under the best of circumstances, an individual will be asked to present a certified disposition. The officer will review and if there is no criminal or health related ground of inadmissibility, should grant the visa, assuming everything else is in order. However, if there is an issue, the applicant should expect to be put into “administrative processing,” which can take excruciatingly long, jeopardizing not only one’s employment but ability to re-enter the United States.

To avoid these types of developments, it is best to assess the impact of any DWI/DUI related arrest prior to departing the US. An immigration attorney versed in this field can help to evaluate whether an arrest or conviction for DWI will pose a problem to re-entry.

The above is general information only and not intended to serve as legal advice. It does not create an attorney client relationship, nor should it be relied upon in lieu of consultation with an immigration attorney.

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