Whether applying for immigrant (Green Card) or nonimmigrant (temporary) visas, foreign nationals must be found “admissible” to the US. There are many legal grounds of “inadmissibility” that make people inadmissible, including criminal and security grounds. A lesser-known basis of inadmissibility relates to health and medical issues, which is what we will focus on in this post.
Foreign nationals are inadmissible if they:
- have a communicable disease of public health significance. (Note that HIV is no longer an automatic bar to admission to the US);
- are determined to have or have had a physical or mental disorder and behavior that may pose or has caused a threat to the property, safety, or welfare of the foreign national or others, and which behavior is likely to recur or to lead to other harmful behavior; or
- are determined to be a drug abuser or addict.
In addition, foreign nationals applying for an immigrant (Green Card) visa are inadmissible if they cannot provide proof of vaccination against certain diseases, including mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, and hepatitis B.
Drunk Driving (DUI)
Foreign nationals must complete applications for their immigrant and nonimmigrant visas, and these applications include several questions that directly or indirectly get at these legal grounds. For example, questions relating to arrests may reveal an arrest that did not result in a conviction that would make a foreign national inadmissible under the criminal grounds may nonetheless open the door to a finding of inadmissibility under the health-related grounds. This happens most commonly with arrests for driving under the influence. Although a mere arrest for a DUI—or even a single conviction for simple DUI—would not cause someone to be found ineligible for a visa under criminal grounds, foreign nationals whose DUI arrests are recent and who are applying for US visas at US Embassies or Consulates abroad will be required to undergo additional medical screening to determine whether the DUI arrest was a result of a “physical or mental disorder” that could pose a threat to the property safety or welfare of others.
Medical Exams
These medical exams, conducted by Embassy-approved panel physicians, include broad and wide-ranging questions regarding not only the DUI arrest, but detailed questions regarding the applicants’ history of use of prescription and controlled substances, as well as mental health history. It is common for panel physicians to pose questions in rather nonchalant ways in order to elicit the most honest—and potentially inculpatory—responses possible. With regard to the drug abuser/addict ground of inadmissibility, anything beyond a single, one-time use of a controlled substance can be considered drug abuse and can result in the denial of a visa application.
Based on the results of the medical exams, panel physicians will make determinations regarding the medical conditions affecting the foreign national, or whether the foreign national was or is a drug abuser or addict, and this information is in turn provided directly to the Embassy. If the Embassy determines that the applicant is inadmissible, the applicant will be advised of the availability of a waiver of the grounds of inadmissibility. Each of the grounds of inadmissibility set forth above may be overcome with the granting of a waiver.
Waivers
For permanent residence (Green Card) applications, the government may waive the ineligibility for foreign nationals having a disease of public health significance, in accordance with specific conditions, including the posting of a bond, in the case of a foreign national who is the spouse, unmarried son or daughter, or minor, unmarried, lawfully adopted child of a US citizen, or lawful permanent resident (or who has been issued an immigrant visa), or of a foreign national who has a son or daughter who is a US citizen, or lawful permanent resident (or has been issued an immigrant visa), or is a VAWA self-petitioner. The government may also waive the ineligibility of foreign nationals having (or having had) a physical or mental disorder in accordance with specific conditions, including the posting of a bond. The government may also waive the vaccination proof requirements if the foreign national obtains the necessary vaccination, a surgeon, medical officer, or panel physician determines that the vaccination would not be medically appropriate, or the vaccination would be contrary to the foreign national’s religious beliefs or moral convictions. There is no waiver for the drug abuser/addict ground of inadmissibility for permanent residence applications.
For nonimmigrant visa applications, the government may waive each of the grounds of inadmissibility as a matter of discretion if the government determines that the reasons that the foreign national has for coming to the US outweigh the potential negative aspects or consequences of the relevant ground of inadmissibility. As a practical matter, the availability of these waivers does not mean they will be automatically granted, and even when granted, they will result in significant delay in the processing of both immigrant and nonimmigrant visa applications.
Foreign nationals to whom these medical ineligibilities apply are well advised to obtain full and complete medical or court records as applicable, and plan ahead for the potential delay in the processing of their application, as well as consult with a qualified immigration attorney.