Prudential Revocation is causing fear to Travel

Recently we posted a video on prudential revocation of visas for those who have a DUI and DWI and traveling back to the United States.  This law is becoming a major nightmare for those who want to travel abroad. We wanted to elaborate more on this rule. The Prudential Revocation rule has been there for a while, however in 2016, the State Department amended the Foreign Affairs Manual to read the following:

9 FAM 403.11-5(B) (U) Prudential Revocations

(CT:VISA-50; 02-22-2016)

a. (U) Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) or is no longer entitled to the visa classification, the Department may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason. This is known as a prudential revocation.

In addition to the conditions described in 9 FAM 403.11-5(A) above, the Department may revoke a visa when it receives derogatory information directly from another U.S. Government agency, including a member of the intelligence or law enforcement community. The process is initiated when CA/VO/SAC receives derogatory information, usually through the Bureau of Intelligence and Research (INR) or from the Department of Homeland Security often in connection with a request for visa revocation. These requests are reviewed by the Visa Offices Revocations Team in CA/VO/SAC/RC, which forwards an electronic memo requesting revocation to a duly authorized official in the Visa Office, along with a summary of the available intelligence and/or background information and any other relevant documentation. When approval for revocation has been given, the subjects name is entered into CLASS and the revocation is communicated within the Department and to other agencies by the following means:

  1. (U) The file is reviewed by the revocations team lead to ensure that the subject has been entered into CLASS under the appropriate code. For a prudential revocation, the VRVK code will be entered as well as any applicable quasi-ineligibility (P) code that corresponds to the suspected ineligibility. In the case of aprudential revocations based on derogatory information forwarded to VO the applicable P code will be entered as well as VRVK.”
  2. (U) A Departmental request to post to attempt to notify the visa holder of the revocation is sent to the issuing post, DHS, and, when the revocation relates to INA 212(a)(3)(A) or (B) and originates from either the Terrorist Screening Center (TSC) or a Joint Terrorism Task Force (JTTF), notification should be sent to those entities as well.
  3. (U) Silent Revocation: If law enforcement interests require that the subject remain unaware of U.S. Government interest, post will be informed of the revocation but instructed not to notify the subject, through a silent revocation.

    b. Unavailable

    c. (U) Prudential Revocation for Driving Under the Influence: Either Post or the Department has the authority to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A) ineligibility when a Watchlist Promote Hit appears for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years. This does not apply when the arrest has already been addressed within the context of a visa application; i.e., the individual has been through the panel physician’s assessment due to the arrest. This does not apply to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle. Unlike other prudential revocations, consular officers do not need to refer the case to the Department, but can prudentially revoke on their own authority. Post should process the revocation from the Spoil tab NIV and add P1A3 and VRVK lookouts from the Refusal window.

9 FAM 403.11-6 (U) RECONSIDERATION OF REVOCATIONS

9 FAM 403.11-6(A) (U) Recommendations for Waivers in Revocation Cases

(CT:VISA-50; 02-22-2016)

  1. a. Unavailable
  2. b. (U) Waiver procedures are described here on the premise that action to revoke a visa has not been made. If a visa has been revoked then reinstatement procedures (see 9 FAM 403.11-6(B) below) are needed to undo a revocation. If a waiver is obtained, you must enter the notation on the visa as required by 9 FAM 403.11-6(B) paragraph (3). A waiver for an ineligibility under section 212(a)(3)(B) of the INA must be requested by the Department. If the waiver limits the number of applications for entry, this information should be included in the notation; for example, single entry or two entries. The alien is to be informed that the visa will be valid only for the period and number of applications for admission authorized by the waiver.

This rule is causing panic in the community of those who have F1 student visas, H1B visas, L1 visas or other non-immigrant visas especially the part about DUI or DWI (Driving under the influence).

c. (U) Prudential Revocation for Driving Under the Influence: Either Post or the Department has the authority to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A) ineligibility when a Watchlist Promote Hit appears for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years. This does not apply when the arrest has already been addressed within the context of a visa application; i.e., the individual has been through the panel physician’s assessment due to the arrest. This does not apply to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle. Unlike other prudential revocations, consular officers do not need to refer the case to the Department, but can prudentially revoke on their own authority.”

Since it is only the State Department which is actually amending their manuals, our law firm has not encountered any of cases where prudential revocation is being conducted inside the United States, although there is a possibility the DHS starting to use this rule. However, in such cases, the alien will have to go to the process of deportation known as removal proceedings and based on the case of Leocal v Ashcroft, the US Supreme Court found that DUI or DWI are not deportable or inadmissible offenses.

However, it is prudent for all the stakeholders who have some sort of DUI or DWI to actually avoid traveling until we have a better picture of the situation.

If you need help or a consultation on the matter, please call us at 510 742 5887