Murthy Takes Action : Strategy for Applicants with DUI Arrests / Convictions
Posted Mar 07, 2008
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As regular MurthyDotCom and MurthyBulletin readers may recall, there was a change as a result of a U.S. Department of State (DOS) cable issued in June 2007 in the procedure for processing a visa application for an individual with an arrest and/or conviction for Driving Under the Influence (DUI). The consulate, apparently, was under the mistaken assumption that the nonimmigrant visa must be denied based on a Class A ineligibility, even with a single incident of DUI. The Murthy Law Firm contacted the DOS Visa Office and the U.S. Consulate in Chennai and the problem has now been solved for any nonimmigrant visa applicant with a referral for assessment due to DUI or related incidents, thanks to our direct efforts to resolve the issue so that any affected person can now benefit and obtain the visa.
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Background of H1B Visa Denials at Chennai, India
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Following the DOS cable, our firm was contacted by a number of individuals who had been denied the H1B visa by the U.S. Consulate in Chennai, India; each for having a single incident of a drunken driving arrest. [See our October 12, 2007 MurthyBulletin article on this in topic, More Visa Delays / Denials at Consulates for Alcohol-Related Offenses, available on MurthyDotCom.] The denial appeared to be contrary to the law and procedures contained in the DOS cable, as there is no automatic inadmissibility or ineligibility for a visa based upon the arrest history of an individual. Inadmissibility requires a finding that one has a mental disease or disorder that may pose or has posed a threat to the property, safety, or welfare of the individual or others. Given the particular history of one with a single arrest, it seemed highly unlikely that such a finding would have been made in a majority of the cases.
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Checking Incorrect Box Results in Medical Ineligibility of Visa
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As explained in our earlier article, an individual with a certain alcohol related arrest and conviction is to be referred to a panel physician for further evaluation. The panel physician determines whether the individual has a disease or disorder that poses a danger, as explained above. Thus, the physician is supposed to exercise independent medical judgment to assess the existence or nonexistence of the dangerous disease or disorder. After significant investigation and effort on the parts of the Murthy Law Firm and Murthy Immigration Services in Chennai, however, we were able to determine that the panel physicians in Chennai were either mistaken or were not making independent decisions, or they were instructed to always check the box indicating medical ineligibility on the medical form. Consequently, even though the medical and psychological evaluations performed on each applicant did not reveal any mental disease or disorder associated with alcohol, the physicians were marking findings of "Class A" medical conditions on the medical forms, indicating mental defect. This finding was incorrectly checked off possibly due to a misunderstanding of the law and despite conflicting notes on the medical form that suggested there was no alcohol-related mental condition. The H1B or other nonimmigrant visas then were denied, based on the manner in which the medical forms were incorrectly indicating the medical ineligibility, and thereby the individuals were not eligible for the visas.
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Murthy Law Firm Makes Efforts to Address the Problem
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In an attempt revise the erroneous practices occurring at the U.S. Consulate in Chennai, India, and possibly at consulates in other parts of the world, the Murthy Law Firm communicated extensively over the course of several weeks with the U.S. Consulate in Chennai, as well as directly with the DOS Visa Office in Washington DC. After a great deal of time, effort, persistence, including alerting the Centers for Disease Control (CDC) of the incorrect practice, and indicating our intent to pursue other remedies, the DOS Visa Office and the Legal Advisory Opinions Section issued revised guidance to the U.S. Consulate in Chennai. This guidance required that the Panel Physician's findings be referred back to the physician for review, consistent with their revised guidance. As a result, all the applicants' visa refusals were overturned and their visas were promptly issued! This indeed was a life-changing event for those who were unfortunate to have been stuck for weeks or months abroad. Likewise, it was rewarding for our firm to have been able to help these people.
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Revised Procedure to Help Similar Cases
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Since resolving these particular cases early in 2008, the Murthy Law Firm has not received reports of any further incidents of this type. It seems that the revised procedures are in place and the system is operating as it should. This does not mean that anyone who has an alcohol related arrest or conviction will be assured of the visa. Each person falling within the terms of the memo, based upon his/her history, will be referred for review by the Panel Physician. Each particular situation will be evaluated on a case-by-case basis.
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Conclusion
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We at the Murthy Law Firm are delighted with this result for our clients, as well as others who would have been affected in the future by this problem. Sometimes, it can be difficult to address matters directly with the consulates. This incident, however, reveals that cooperation from all quarters can result in a desirable resolution when the law and procedures are recent, complex, or unclear, benefiting everyone concerned.
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