I am a Canadian who was convicted on an impaired driving charge in almost seven years ago. I was convicted on a second impaired driving charge in the US in 1995. Although I would like to apply for alien employment certification with a US employer, I am uncertain whether my driving record qualifies as a criminal exclusion on my potential visa application. If my driving record is a criminal exclusion and I applied for a waiver, what sort of documentation of rehabilitation is necessary?

I assume you have already reviewed the information on exclusion. There are two grounds of exclusion that might apply:

1. exclusion for moral turpitude under INA §212(a)(2)(A)(i)(I); and
2. exclusion for physical or mental discorders under INA §212(a)(1)(A)(ii).

Exclusion for Moral Turpitude

Moral turpitude refers to conduct which is inherently base, vile or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one's fellowman or society in general. Neither the seriousness of the offense or the severity imposed determines whether or not a crime involves moral turpitude. However, violations of regulatory laws are generally not considered moral turpitude offences. Driving while under the influence of alcohol is such a violation. Note 2.3-2 to §40.21(a) of the Foreign Affairs Manual ("FAM") confirms that driving while drunk is not considered a crime or moral turpitude for the purposes of visa issuance.

Exclusion for Physical or Mental Disorders

Under INA §212(a)(1)(A)(ii), aliens are excludable if they have been determined in accordance with the regulations of the Secretary of Health and Human Services in consultation with the Attorney General:

1. to have a physical or mental disorder and a history of behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of the alien or others; or

2. to have had a physical or mental disorder and a history or behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior.

A waiver of this ground is available under INA §212(g)(2) subject to any terms, conditions and controls, if any, imposed by the Attorney General in his discretion.

This ground does not specifically refer to alcoholics or alcoholism (it did prior to 1990). Nevertheless, according to Note 6.3 to §40.11 of the FAM, alcoholism constitutes a medical condition. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior.

An alcoholic is not ineligible to receive a visa unless there is current, or a history of, harmful behavior associated with the disorder which has posed or is likely to pose a threat to the property, safety, or welfare of the alien or others. A conviction for driving while under the influence of alcohol has been determined by CDC to constitute evidence of medical disorder with associated harmful behavior.

In light of the above, it is possible that your two convictions for driving under the influence of alcohol will render you excludable under this ground. Of course, they would have to believe that your behaviour was likely to recur or lead to other harmful behavior before you would be found excludable.

There is still a waiver of this ground available under under INA §212(g)(2). I suspect that the Attorney General would require some evidence of counseling or progress toward recovery as a condition of the waiver being granted.