British Expats - Visa applications with DWI arrest in the US

Hi, I would like to share my experience in trying to obtain a visa to the US after an arrest for a DWI (not conviction) in Texas. I have applied for numerous visas and would like to explain my dealings with the US embassy and different immigration attorneys so that someone in a similar situation may find this of some use.

I was over in the US on business under the visa waiver program back in 2010. I had been travelling out to the US over most of 2010 for a project based in Houston, TX. I was then offered a position with my company based in the US. During my time there I met my wife. We have since had a son together and now I am looking to immigrate to the US to be with my family.

In February 2011 I was arrested for a DWI while in Houston. My fiancé at the time (now wife) bailed me out and I attended court about a week later. My court date was rescheduled but for a date after my stay under the visa waiver program had ended. I returned to the UK before my visa waiver ran out. While in the UK my immigration attorney was drafting the paperwork for an L-1B visa.

I applied for an L-1B visa and had my interview at the US embassy in London. During the interview I was asked about my position within the company and my role and how it would benefit the US Company. The officer also asked me to explain why I had recently been in the US. I explained everything about my job and the project that I had been working on.

The officer then asked about the DWI, I explained that I was out for a meal with some friends and that I had regrettably had a couple drinks and then travelled home. On the way home the vehicle in front stopped suddenly and I failed to stop in time, the police then arrived and asked me to perform a sobriety test. The police then took me to a mobile station and asked me to perform the sobriety test again. After this I was asked to provide a sample of breath, I provided a sample then I was arrested.

After I had explained this the embassy representative went to speak to someone. The officer came back about 10 minutes later and gave me a letter of refusal stating section 214(b) of the INA (which is refusal because I cannot show sufficient ties in my home country). I later found out that this was given in error. The officer also informed me that I would need to attend a medical examination, and told me if the results of the medical show that I have a problem with alcohol that I won’t be allowed entry into the country. I was handed back my passport and asked to leave. Upon leaving I asked how long this process would take as I have a 6 month pregnant girlfriend in the US, and I was told very abruptly that there was nothing they could do about it and told me to leave.

I attended the medical examination and filled in an alcohol and drugs questionnaire and an interview by the panel physician. About 2 weeks after the medical was completed I received a letter from the embassy stating that I had been denied a visa under section 212(a)(1)(A)(iii) of the INA (which is someone who is determined to have a physical or mental disorder and behaviour associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others).

After this my immigration attorney suggested that we try for a B1/B2 visitors visa so that I could attend my court hearing which was set for May 27th. I arranged an interview at the US embassy in London to try and obtain the visa.

During this interview I was asked, my reason for travel? I explained that it was solely to attend the court date. I was asked about my family and where they lived and who I lived with. I told them that I live with my parents and have a brother and sister in the UK. I was asked about my job, my job title and how long I have worked there. I told them I was a Process engineer and that I have worked with my company for the last 8 years. The embassy representative asked to see the court re-set form and my letter from my criminal attorney, I handed over the letters and then the officer went to speak to someone. When they returned they handed me a letter stating that I was ineligible for a visa under sections 212(a)(1)(A)(iii) and 214(b) of the INA and told me she could not give me a visa at this time. I explained that I was innocent and wanted to travel to the US to prove my innocents and I had the right to seek justice within the US court system. I was told again that I would not be allowed to travel because of sections 212(a) and 214(b). I tried to argue that I had not been convicted so there could be no medical assumption that I was a danger to property, myself or others. I was again told that there was nothing they could do as it is a medical ineligibility from the panel physician and the only way to remove this is to complete another medical and for the panel physician to indicated that I no longer have a problem.

I was then told that I would not be recommended for a waiver of ineligibility because the incident was so recent, again I tried to argue that I had not yet been convicted so in theory there was no incident but again I was told there was nothing the embassy could do.

After all this, my immigration attorney told me that he did not have much experience in this type of case and suggested to try to apply for another L1-B visa accompanied with a waiver of ineligibility. He told me that I would need to hire an additional attorney that had more experience with the generation and processing of the waiver of ineligibility.

I agreed to proceed with this route. At this time I had already missed the birth of my son. At some consolation I was able to watch his birth on skype (in the end it was a bad idea as it was too hard to bare). As I was not present at the birth my name was not added to the birth certificate, we filed to have my name added and I acknowledged his paternity with the State of Texas and have now been added to the birth certificate (was a total nightmare).

We went through the same process as the earlier L1-B visa application. During the interview I was asked how long I have worked for my company and what qualifications I have. These were the only questions I was asked. After this the officer informed me that I would again be asked to attend a medical examination. I asked if I could hand in the waiver of ineligibility application. I was told that I may not need the waiver of ineligibility based on the results from the medical. The officer then realised that my original ineligibility was diagnosed in March 2011 (the officer originally though that it was in March 2010). The officer then asked to see the waiver of ineligibility application, asked if I would still like to attend ahead the medical examination and asked if my drinking habits had changed. I told the officer yes and that I have not consumed any alcohol since the incident in February and I would like to attend the medical as I feel that the original diagnosis was incorrect and explained that I had received a private medical carried out under CDC regulations that contradicted the panel physician’s findings. I was told that the private medical is irrelevant and the embassy would not consider this. I handed in the waiver of ineligibility application and was told that the embassy would review it and inform me of their decision.

During the medical, the doctor said she could remember my case and explained that even if I completed the medical it would not change the ineligibility. She explained that the CDC would not change their ruling unless a period of 12 months (remission) has passed and that they were very strict about this. She told me that I could go ahead with the medical if I wish but the results would not change anything. She explained that if I were to come back in February and complete a medical and have abstained from consuming alcohol it would then be lifted and I would be free to travel to the US (not sure how true this is). At this point I was not going to continue with the medical, the doctor then spoke to the embassy on the phone and the embassy informed the doctor that I would need a valid medical if the waiver of ineligibility were to be approved. I said I would like to carry out the medical on the chance that the waiver be approved so that I would not have to travel back to London.

About 4 months after this I received a letter from the embassy stating that I had been denied again under section 212(a)(1)(A)(iii) of the INA.
During this time the judge in my DWI case decided that they could not wait any longer for my return to the US and revoked my bond. I now have an outstanding warrant in Harris county.

My fiancé and I then decided it was time to get married, we married in Cyprus as I could not travel to the US. We are now applying for a spouse visa (just filed the I-130 forms this week), my current immigration attorney informs me that the outstanding warrant and medical ineligibility are going to be my biggest stumbling blocks in obtaining a spouse visa. I will keep you all informed of how this process goes.