United States Immigration Implications
Q: Would having a DUI record affect my immigration status in the United States? What type of consequences would it entail?
A: Under the U.S. immigration laws, a “crime involving moral turpitude” (or the admission of the acts that constitute such a crime) is a ground for inadmissibility to the United States and can result in removal from the United States. Generally, in order to involve “moral turpitude”, a crime must have an intent requirement. Clear examples are murder and theft. In contrast, certain other crimes do not have an intent requirement. For example, as defined in most state laws, DWI (driving while intoxicated) and DUI (driving under the influence) mean that a person was driving with a certain blood level of alcohol or other intoxicating substance above that legally permissible under law. Usually, there is no reference to intent.
As such, an ordinary DWI or DUI conviction is not considered a CIMT unless it is combined with an aggravating factor. Nevertheless, although it may not result in your removal it may limit or hinder your ability to return to the United States after returning to your home country. Let us assume that you are a H1-B visa holder and you have a record such as this. Specifically, when you will be interviewed by a U.S. consulate overseas, you will likely get a 221g stamped on your H1-B.
International Travels & Foreign Jurisdictions
Q: I work in the finance department for a non-profit organization in Washington State. My work entails frequent international travels to perform field visits to our camps and offices abroad. Would having a DUI record endanger my ability to travel to other countries and obtain a visa over there?
A: Your occupation inherently entails travelling abroad to work in your non-profit organization’s foreign offices. My supposition is that you most probably will have to travel abroad to attend any conferences or meetings with other organizations engaged in international development work, for instance.
In this regard, it is essential for you to know that almost every country considers any type of crime a reason to refuse to let you into their borders. Certain countries may also put a restriction on the frequency of your visits due to a DUI conviction. And since countries do not particularly differentiate or have similar classification with the type of crime you were convicted of (either a misdemeanor or felony), they may refuse to let you in based on their discretion.
Almost all DUI convictions are considered misdemeanors, which are far less serious than felonies. Several countries typically ban you if you are convicted of a felony, only. Nonetheless, if you have been convicted of a DUI misdemeanor, countries can and may limit or restrict your entry for a specified amount of time.
In terms of travel restrictions and implications, in addition to Canada, some other countries may also deny an entry visa to anyone who has either been convicted or plead guilty to any crime or misdemeanor. Some of these countries are China, Malaysia, England, Australia and Japan. It seems like all these countries will require one to disclose any such convictions/arrests and the issuance of a visa could be negatively affected by any such disclosures.
In Canada, despite the fact that a criminal act is only a misdemeanor, Canada, routinely refuse entry across its borders to anyone Canada determines is an undesirable. It is considered to be a felony in Canada. Anyone coming into the country is required by Canadian law to declare the conviction to the customs agent whether asked or not.
Since 2003, Canadian police and federal agencies use the Canadian Police Information Center (“CPIC”), which is a database maintained by the Royal Canadian Mounted Police (“RCMP”). CPIC communicates with the United States National Crime Information Center (US NCIC), National Law Enforcement Telecommunications System (NLETS), Interpol and other international agencies.
Foreigners with recent (in the past 10 years) drunk-driving criminal convictions are generally refused entry at the border. Mexico’s Immigration Act section 37 may consider any foreign drinking and driving outstanding charge or conviction as an Indictable offense (similar to a felony), as such:
Article No. 37(5), states:
[“The Department of the Interior shall be able to deny foreigners entry into the country or a change in their immigration category or status in any of the following cases:
i. International reciprocity does not exist;
ii. Domestic demographic equilibrium so requires;
iii. The quotas referred to in Article 32 herein do not allow such entry or status change;
iv. It is deemed that such entry or status change would be harmful to the economic interest of Mexican citizens;
v. The foreigner in question has violated domestic laws or has negative references from abroad
vi. The foreigner in question has violated this Act, the Regulations thereto, or other applicable administrative provisions, or does not comply with the requisites set forth in same;
vii. The foreigner in question is not deemed physically or mentally sound, in the opinion of the public health authorities; or
viii. Other statutory provisions so stipulate.”]
When applying to Qatar work visa, one of the required documents is a Police Clearance Certificate, sometimes referred to as a Good Conduct Certificate or a Criminal Record Check for Overseas Employment is a requirement of the State of Qatar from all expatriates (non-citizens) intending to do business in Qatar. Most likely, you will need to apply for such document in order to obtain your residence permit after arrival in Qatar. As such:
The State of Qatar Business Visa Requirement:
[“Non-U.S. Citizens: Your police clearance certificate should be attested from the following authorities in your country:
i. Ministry of Foreign Affairs in your home country;
ii. Embassy of Qatar in your home country.”]
Therefore, having a DUI criminal record might induce a denial for a business visa in Qatar.
UAE & Golf countries – Cultural Aspect:
In addition to the criminal record and good conduct screening, in a conservative Muslim society, having a drinking record might highly been seen negatively. As discussed above, the decision of approval of your entry to a country might be left to the discretion of the immigration officer. Thus, reporting a DUI or DWI record may endanger your business visa application for these countries.
European countries, especially the Netherlands, France and Germany
Those three countries are bound by the Schengen agreement, which allows a visa holder of one of these signatory countries to travel freely to other listed European countries, provided the visa holder is granted entry and approval when arriving to the European Union (“EU”).
Data of any denial to one of those countries will be shared on the Second Generation Schengen Information System II (“SIS II”) under Title IV of the Treaty establishing the European Community. The SIS II Regulation sets forth the conditions for issuing alerts on refusal of entry or stay for non-EU nationals.
Moreover, the post 9/11 terrorist threats have caused the United States, the EU and its Member States, and the International Police Organization (Interpol) to step up their efforts to establish more effective mechanisms for cross-national criminal information sharing. In the last few years much has been accomplished by means of mutual legal assistance treaties (MLATs). Hence, criminal justice information continuum are routine individual criminal history records created and held by police, judicial authorities, prison officials, and other agencies, called in the United States called “rap sheets” (an acronym derived from “record of arrest and prosecution”).