Your Foreign Worker Was Arrested for DUI, Now What?

By Erica E. Flores - Skoler, Abbott & Presser, P.C.

September 8, 2018

No employer wants to read in the newspaper (or hear through the office grapevine) that one of its employees was arrested over the weekend for driving under the influence. Unfortunately, that does happen - probably more than you realize.  Employers often call us up asking what to do:  Can they terminate the employee based on the arrest?   Would they be liable if the employee continued to work and got into an accident?  Can the company turn a blind eye if the employee is an otherwise excellent performer?  On top of those universal concerns, employers who have foreign workers, such as those in F-1 or H-1B status, must also deal with the fact that the U.S. Department of State (“DOS”) generally doesn’t take an “innocent until proven guilty” approach to such arrests.

An Arrest Is Enough to Revoke Visa Stamp

Historically, DUI arrests or convictions only affected new visa applications and only for applicants with recent or repeat offenses.  In November 2015, however, with increased concerns about drunk driving, DOS announced a new “zero tolerance” policy toward alcohol-related charges and offenses.  Under this policy, the DOS has discretion to revoke the existing visa stamps of foreign nationals who are arrested for DUI, even if they are not convicted or even charged.

What does that mean for the sponsoring employer?  The revocation of the work visa does not affect the employee’s immediate ability to be in the United States, although in some cases the DOS has issued notices to individuals arrested for DUI-related offenses requiring them to leave the country immediately.  However, someone whose visa stamp has been revoked can expect that any request to extend or transfer their visa will be denied.

If Out of the Country, May Be Out of Luck

The bigger problem arises when the employee with a revoked visa stamp decides to take a trip home or otherwise leaves the country.  He or she won’t be able to simply hop on a plane and return.  A new visa must to be issued abroad before the foreign worker is allowed to return to the U.S. because the individual’s visa stamp in his or her passport then becomes invalid for travel to the United States.

Returning to the U.S. is no easy process.  A DUI arrest is considered a potentially disqualifying health concern that requires that a specially-designated physician conduct an evaluation to assess whether the employee has a physical or mental disorder associated with alcohol use that may pose a threat to the property, safety or welfare of others in the United States.  The physician’s report is not reviewable by the visa applicant, and a decision by the U.S. Consulate to deny the visa cannot be formally appealed.  This means the employee could be stuck overseas for months while pursuing other avenues of relief.

What is An Employer to Do?

For the most part, Massachusetts employers are prohibited from asking employees directly about their criminal history, so employers cannot require any employee to disclose a DUI arrest.  Employers who do not want to risk losing a valued employee to this immigration morass can, however, take other preventative measures.  First, employers should make sure that foreign employees working under a visa understand state and local drunk driving laws and the immigration-related consequences of a DUI arrest, and remind them of these consequences before they depart for any international trip.  And, second, employers can encourage such employees to voluntarily report a DUI arrest (or notice of visa revocation) so that they can work together to maximize their chances of being able to renew the visa so that the employee can continue to legally work in the United States.  This will almost certainly involve a trip back home for an indeterminate period, so the employer and the employee should make sure the employee goes before the expiration of his current visa and should make arrangements to cover the employee’s workload in the interim.

Sponsoring a foreign national for a work visa is a big decision for any employer.  The process is complicated, it can take quite a long time, and there are costs involved.  Unfortunately, the process does not come to an end when the visa is issued.  On the contrary, a work visa is not a guarantee that the sponsored employee will be permitted to stay in the United States for the duration – it is conditional, and DOS can and does revoke visas for a variety of reasons, including an arrest for drunk driving.

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