DUI IMPACT ON TN VISA APPLICANTS / WORKERS

Under U.S. immigration law, the effect of a criminal conviction on a TN visa worker depends on whether an individual is (i) applying for a TN visa (Mexican) or seeking admission to the U.S. under TN status (Canadian); or (ii) already present in the U.S. under TN visa status. As result of a criminal conviction, individuals in the first category may be held inadmissible to the U.S.; those in the second category may be subject to removal (previously known as deportation).

1. Effect of DUI Conviction for Individuals Seeking a TN Visa

Individuals applying for a TN visa  at a U.S. consulate (Mexican), or seeking admission to the U.S. under TN status at a U.S. port-of-entry (Canadian) can be denied a TN visa or entry to the U.S. under TN visa status if they are subject to one of the grounds of inadmissibility listed in INA § 212 (a). These inadmissibility grounds can also apply to individuals already present in the U.S. who are e.g. filing an I-129 petition for an extension of TN status or a change to TN visa status, or who are filing an I-485 Adjustment of Status application for a green card.

One of the grounds that can lead to inadmissibility is where an individual has been convicted of a "crime involving moral turpitude" (CIMT), or has admitted to committing a CIMT. INA § 212 (a) (2) (A) (i). In most cases, the question of whether a TN visa worker may be inadmissible to the U.S. based on a DUI conviction will depend on whether the crime is considered a CIMT. Whether a DUI conviction may be considered a CIMT is discussed below. Even if an individual’s DUI conviction is classified as a CIMT, he/she may qualify for an exception to this ground of inadmissibility for “petty offenses.”

Another possible basis for a TN visa applicant to be considered inadmissible to the U.S. based on a DUI conviction is under the physical or mental disorder ground of inadmissibility. This is due to a 2007 policy change by the U.S. Department of State and generally will only impact citizens of Mexico filing for a TN visa stamp at the U.S. consulate.

2. Effect of DUI Conviction on TN Visa Workers

Individuals present in the U.S. under TN visa status may be subject to removal from the U.S. under numerous grounds. See INA § 237. For example, if an individual was inadmissible to the U.S. at the time of entry under INA 212, but was erroneously admitted, that person may be removed from the U.S. If a person violates his/her TN visa status, e.g. by working with a different employer, that individual can be placed into removal proceedings.

A TN visa worker can also be removed from the U.S. if convicted of a criminal offense. A person may be removed from the U.S. if convicted of a "crime involving moral turpitude" (CIMT), an "aggravated felony", a controlled substance violation, or a domestic violence crime. INA § 237 (a) (2). In most cases, the question of whether a TN visa worker may be subject to removal based on a DUI conviction will depend on whether the crime is considered a CIMT. When the crime occurred, and whether the TN visa worker has multiple convictions is also important.

Whether a DUI conviction may be considered a CIMT is discussed below. If a TN visa worker’s DUI conviction is considered a CIMT, he/she will be subject to removal only if the crime was committed within 5 years of his/her date of admission to the U.S., and if the crime carries the possibility of a 1 year prison sentence. See INA § 237 (a) (2) (A) (i). However, if a TN visa worker has been convicted of 2 or more CIMTs, then he/she can be removed from the U.S. at anytime. Id.

3. Is a DUI Conviction Considered a CIMT?

Generally, a simple DUI conviction with no aggravating factors is not considered a crime involving moral turpitude (CIMT) and should not render a TN visa worker inadmissible to the U.S., or result in a TN visa worker being removed from the U.S. See Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).  
 
However, a DUI offense involving aggravating factors may be considered a CIMT, and may render an individual inadmissible to the U.S., or subject him/her to removal from the U.S. See, e.g. Marmolejo-Campos v. Holder, Op. No. 04-76644 (9th Cir. 2009) (DUI offenses committed with the knowledge that one’s driver’s license has been suspended are CIMTs).

The law on whether a DUI offense is considered a CIMT, or whether such an offense may lead to inadmissibility or removal on other grounds, is determined on a case-by-case basis and varies depending on jurisdiction. Thus, individuals facing criminal charges for a DUI or whom have already been convicted of a DUI should consult with an immigration attorney to determine the potential impact of the conviction on their U.S. immigration status.