The USCIS has issued updated guidance to its adjudicating officers on the health-related grounds of inadmissibility and their associated waivers. A common inadmissibility that I am contacted for involves INA 212(a)(2)(A)(iii), which deems an alien inadmissible if he/she is determined:
(I) to have a physical or mental disorder and 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
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior;
The USCIS guidance referenced below is addressed to adjudicating officers.
Please keep in mind that waiver applicants should prepare and submit a comprehensive waiver application, that includes an up-to-date psychological evaluation; a statement from an approved U.S. facility or specialist agreeing to evaluate the applicant upon entry into the U.S. and agreeing to file a report with the CDC; evidence of medical insurance to pay for the costs of the mental disorder; among other supporting documents relevant to the case.
Physical or Mental Disorders with Associated Harmful Behavior
Applicants who have physical or mental disorders and harmful behavior associated with those disorders are inadmissible. The inadmissibility ground is divided into two subcategories:
- Current physical or mental disorders, with associated harmful behavior.
- Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.
There must be both a physical or mental disorder and harmful behavior to make an applicant inadmissible based on this ground. Neither harmful behavior nor a physical/mental disorder alone renders an applicant inadmissible on this ground. Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.
Physical or mental disorders with associated harmful behaviors are diagnosed according to the Diagnostic and Statistical Manual of Mental Disorders (DSM).
Under the Technical Instructions, a diagnosis of substance abuse/addiction for a substance that is not listed in Section 202 of the Controlled Substance Act (with current associated harmful behavior or a history of associated harmful behavior judged likely to recur) is classified as a mental disorder.
Under prior Technical Instructions and the July 20, 2010 or older versions of the form, these conditions were summarized under the drug abuse/addiction part of the form. An officer, however, should not find an applicant inadmissible for “drug abuse/addiction” if a non-controlled substance is involved.
Relevance of Alcohol-Related Driving Arrests or Convictions
1. Alcohol Use and Driving
Alcohol is not listed in Section 202 of the Controlled Substances Act. Therefore, alcohol use disorders are treated as a physical or mental disorder for purposes of determining inadmissibility. As a result, an applicant with an alcohol use disorder will not be deemed inadmissible unless there is current associated harmful behavior or past associated harmful behavior likely to recur. The harmful behavior must be such that it poses, has posed, or is likely to pose a threat to the property, safety, or welfare of the applicant or others.
In the course of adjudicating benefit applications, officers frequently encounter criminal histories that include arrests and/or convictions for alcohol-related driving incidents, such as DUI (driving under the influence) and DWI (driving while intoxicated). These histories may or may not rise to the level of a criminal ground of inadmissibility. A record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute evidence of a health-related inadmissibility as a physical or mental disorder with associated harmful behavior.
Operating a motor vehicle under the influence of alcohol is deemed to be an associated harmful behavior that poses a threat to the property, safety, or welfare of the applicant or others. Where a civil surgeon’s mental status evaluation diagnoses the presence of an alcohol use disorder (abuse or dependence), and where there is evidence of harmful behavior associated with the disorder, a Class A medical condition will be certified on Form I-693.
Some applicants may fail to report, or may under-report, alcohol-related driving incidents in response to the civil surgeon’s queries. Where these incidents resulted in an arrest, they may be subsequently revealed in the criminal history record resulting from a routine fingerprint check. Consequently, a criminal record printout revealing a significant history of alcohol-related driving arrests may conflict with the medical examination report that indicates no alcohol-related driving incidents were reported to or evaluated by the civil surgeon.
In such an instance, an officer may require the applicant to be re-examined. The re-examination would be limited to a mental status evaluation specifically considering the record of alcohol-related driving incidents. On the RFE, officers are instructed to use the following language: “Please return to the civil surgeon for purposes of conducting a mental status evaluation specifically considering the record of alcohol-related driving incidents.”
Upon re-examination, the civil surgeon may refer the applicant for further evaluation to a psychiatrist or to a specialist in substance-abuse disorders as provided for under the Technical Instructions. After such referral, the civil surgeon will determine whether a Class A medical condition exists and amend the Form I-693 accordingly. The determination of a Class A condition is wholly dependent on the medical diagnosis of a designated civil surgeon.
Re-Examination for Significant Criminal Record of Alcohol-Related Driving Incidents
Only applicants with a significant criminal record of alcohol-related driving incidents that were not considered by the civil surgeon during the original medical examination should be referred for re-examination.
The actual criminal charges for alcohol-related driving incidents vary among the different states. A significant criminal record of alcohol-related driving incidents includes:
- One or more arrests/convictions for alcohol-related driving incidents (DUI/DWI) while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident(s).
- One or more arrests/convictions for alcohol-related driving incidents where personal injury or death resulted from the incident(s).
- One or more convictions for alcohol-related driving incidents where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.
- One arrest/conviction for alcohol-related driving incidents within the preceding five years.
- Two or more arrests/convictions for alcohol-related driving incidents within the preceding ten years.
If the officer finds that the criminal record appears to contradict the civil surgeon’s finding in the medical examination report, then the officer should request a re-examination.
Example: An applicant’s criminal record shows that she was convicted for DWI-related vehicular manslaughter. However, the medical examination report reflects that no Class A or B physical or mental disorder was found. In this case, the officer should request a re-examination because the medical examination report finding should have reflected that the applicant has a history relating to an alcohol-related driving incident that could indicate a physical or mental disorder with associated harmful behavior.
3. Determination Based on Re-Examination
Upon completion of the re-examination, the officer should determine whether the applicant is inadmissible. If the civil surgeon annotated a Class A condition, the applicant is inadmissible. If no Class A condition is certified by the civil surgeon, the officer may not determine that the applicant is inadmissible. In exceptional cases, the officer may seek review of the civil surgeon’s determination from CDC.
If the applicant is inadmissible, he or she may file an application for waiver of inadmissibility.
C. Relevance of Other Evidence
The guidance relating to alcohol-related driving arrests or convictions described above applies to any similar scenario where the record of proceeding contains evidence that may indicate inadmissibility due to a mental or physical disorder with associated harmful behavior that was not considered by the civil surgeon in the original medical examination. Such evidence includes, but is not limited to:
- A prior finding of inadmissibility due to a mental disorder.
- A history of institutionalization for a mental disorder.
- A criminal history other than drunk driving arrests/convictions, such as assaults and domestic violence, in which alcohol or a psychoactive substance was a contributing factor.
- Any other evidence that suggests an alcohol problem.
- Other criminal arrests where there is a reasonable possibility of a mental disorder as a contributing factor.
Accordingly, where the record of proceeding available to the officer contains evidence suggestive of a mental disorder, and the Form I-693 medical report does not reflect that the evidence was considered by the civil surgeon, the applicant must be required to undergo a mental status re-examination by a civil surgeon specifically addressing the adverse evidence that may not have initially been revealed to the civil surgeon.
D. Parts of Form I-693 Addressing Physical or Mental Disorders
The civil surgeon must check the appropriate findings box on the medical examination report. The civil surgeon should also either annotate the findings in the remarks section or attach a report, if the space provided is not sufficient. However, the officer should not RFE simply because the civil surgeon has omitted the remarks or failed to attach a report.
Waiver of Physical or Mental Disorder Accompanied by Harmful Behavior
If the applicant has a physical or mental disorder and behavior associated with the disorder that poses, may pose, or has posed a threat to the property, safety, or welfare of the applicant or others, the applicant must file a waiver to overcome this ground of inadmissibility.
The officer is instructed to remember that the physical or mental disorder alone (that is, without associated harmful behavior) or harmful behavior alone (without it being associated with a mental or physical disorder) is not sufficient to find the applicant inadmissible on health-related grounds.
USCIS may grant this discretionary waiver in accordance with such terms, conditions, and controls (if any) that USCIS imposes after consulting with the Secretary of Health and Human Services (HHS). A condition could include the payment of a bond.
A common condition of granting a waiver for an applicant with a physical or mental disorder with associated harmful behavior is that the applicant must agree to see a U.S. health care provider immediately upon admission and make arrangements to receive care and treatment.
The officer must determine whether the applicant is eligible for the waiver, consult with CDC, and determine whether the waiver is warranted as a matter of discretion.
B. Waiver Eligibility and Adjudication
1. Qualifying Relationship
Unlike waivers for communicable diseases of public health significance, waivers for physical or mental disorders with associated harmful behaviors do not require a qualifying relationship.
2. Documentation for CDC’s Review
As noted above, USCIS can only grant this waiver after it has consulted with CDC. However, CDC’s review of the necessary documents does not constitute a waiver approval. CDC may recommend that USCIS should make the waiver subject to appropriate terms, conditions, or controls.
To obtain CDC’s review of the waiver application, the officer should forward the following documents to CDC:
- A cover letter that identifies the USCIS office requesting the review;
- A copy of the waiver application that contains all the required signatures, but not the supporting documentation that is not medically relevant;
- A copy of the medical examination documentation;
- A copy of the supporting medical report, if provided, detailing the physical or mental disorder that is associated with the harmful behavior and the physician’s recommendation regarding the course and prospects of the treatment; and
- Copies of all other medical reports, laboratory results, and evaluations regardless of whether they are connected to the mental or physical disorder with associated harmful behavior.
Officers should only send copies, not originals, because CDC retains the documents.
3. Sending Documents to CDC
The documents should be mailed to the following address by the reviewing officer:
Centers for Disease Control and Prevention (CDC)
Division of Global Migration and Quarantine
1600 Clifton Road, Mailstop E 03
Atlanta, GA 30333
Attention: Quality Assessment Program (QAP)/Waivers
If the officer determines that a waiver case warrants expeditious review by CDC, the case may be faxed to (404) 639-4441 or emailed to email@example.com, Attention: Quality Assessment Program (QAP)/Waivers, Urgent. If sent via email, the documents should be sent in password protected file(s). If sent via fax, the fax cover sheet should request that the case be reviewed expeditiously and that CDC’s response be sent via fax. The officer should also email CDC at firstname.lastname@example.org, advising that an expedited request was sent via fax.
4. CDC Response
Once the documents are received by CDC, the documents are reviewed by CDC’s consultant psychiatrist and results of that review are forwarded to the requesting USCIS office. CDC will not return any of the documents provided by USCIS.
CDC’s usual processing time for review and response to the requesting USCIS office is approximately 4 weeks. If CDC’s response appears delayed, the officer may contact CDC at email@example.com to obtain a status update.
Upon receipt, the officer should review CDC’s response to determine next steps.
If CDC agrees in its response that the applicant has a Class A condition, CDC will send to the USCIS requesting office CDC 4.422-1 forms, Statements in Support of Application for Waiver of Inadmissibility Under Section 212(a)(1)(A)(iii)(I) or 212(a)(1)(A)(iii)(II) of the Immigration and Nationality Act. The officer must provide the CDC 4.422-1 forms to the applicant (or the applicant’s sponsor) for completion. Once the CDC forms are completed and returned to USCIS, the officer must return the completed forms to CDC for review and endorsement.
Once CDC receives the completed forms, it reviews them to determine whether the applicant has identified an appropriate U.S. health care provider and that the health care provider has completed the forms. If the appropriate U.S. health care provider has been identified, CDC will endorse the forms and return them to the requesting USCIS office.
If CDC’s response indicates that the applicant is “Class B” or “no Class A or B,” it is CDC’s recommendation that the applicant does not require a waiver for the medical condition.
If CDC’s response indicates that additional information is needed in order to complete the review, the officer should issue an RFE for the applicant to provide additional information as specified by CDC. The officer should submit the information obtained through the RFE to CDC. CDC will provide a response to USCIS regarding the additional information. Once CDC indicates that no additional information is needed, the officer may proceed with the adjudication of the waiver.
As is generally the case for waivers, a waiver for mental or physical conditions with associated harmful behavior requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion.
CDC’s review and endorsement of the identified U.S. health care provider should ordinarily be sufficient to warrant a favorable exercise of discretion for the grant of the waiver. However, if an applicant declares openly his or her unwillingness to commit to treatment, the waiver may be denied as a matter of discretion. If CDC does not favorably endorse the identified U.S. health care provider, the officer should generally not grant the waiver as a matter of discretion.
By statute, it is USCIS’s decision whether to make the waiver subject to terms, conditions or controls. A CDC recommendation concerning terms, conditions, or controls on the granting of the waiver ordinarily has great persuasive weight, but is not binding on USCIS.
USCIS should inform CDC of the decision (approval or denial) of the waiver. The officer does so by completing the CDC response letter that CDC provided when it returned the endorsed CDC forms to the officer.
Step-by-Step Checklist Followed by Officer for Health-Related Inadmissibility Waivers
Step 1: Gather the necessary documentation for CDC review.
Step 2: Send documentation to CDC.
Step 3: Review CDC response.
Step 4: If applicable, have CDC 4.422.1 forms completed by the applicant and return them for endorsement by CDC.
Step 5: Analyze whether the waiver should be granted as a matter of discretion.