Health-Related Grounds of Inadmissibility
B. Background
A medical examination is generally required for all immigrant visa and some nonimmigrant visa applicants, as well as for refugees, and adjustment of status applicants. The purpose of the medical examination is to determine if an applicant has a medical condition(s) that renders him or her inadmissible to the United States.
Generally, applicants establish their admissibility on medical grounds by submitting a Report of Medical Examination and Vaccination Record (Form I-693), or Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053) or Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), and related worksheets. [1]
Civil surgeons or panel physicians complete these documents after the medical examination of the applicant, [2] certifying the presence or absence of physical or mental conditions that may render the applicant inadmissible. Two types of certifications may indicate to USCIS that the applicant may be inadmissible: a “Class A” and a “Class B” condition.
A Class A condition is conclusive evidence that an applicant is inadmissible on health-related grounds. A Class B condition, unlike a Class A condition, does not make an applicant inadmissible on health-related grounds but may lead the officer to conclude that the applicant is inadmissible on other grounds (such as public charge). [3]
Before 1957, no waiver was available to applicants inadmissible on health-related grounds. The Immigration Act of 1957 created the first waiver provision for those afflicted with tuberculosis who had close relatives in the United States. [4] In addition, the 1965 amendments to the INA authorized the waiver of inadmissibility and admission of certain applicants in this category who had close relatives in the United States. [5]
The Immigration Act of 1990 [6] relaxed the requirements for a familial relationship before a medical waiver could be granted. In addition, over time, other provisions were added to the 1952 Immigration Act that allowed for other waivers of medical grounds depending on the immigration benefit sought.
C. Scope
If an applicant is inadmissible because of a medical condition, [7] he or she may have a waiver available. The availability of a waiver depends on the legal provisions governing the immigration benefit the applicant seeks.
This Part C only addresses the processes used for the medical waiver available to persons seeking an immigrant visa or adjustment of status based on a family or employment-based petition. [8] All medical grounds of inadmissibility have a corresponding waiver under this section except for inadmissibility based on drug abuse or addiction. [9]
Applicants for other immigration benefits categories, such as refugees and asylees seeking adjustment, [10] Legalization or SAW applicants, [11] or applicants under other special programs, may have additional or other means to waive grounds of medical inadmissibility, including inadmissibility for drug abuse or addiction. [12]
Many of the processes mentioned in this Part C are also applicable to other medical waivers, such as those obtained by asylees or refugees seeking adjustment of status.
F. Role of Centers for Disease Control and Prevention (CDC)
Any waiver application must be sent to the U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC) for review.
CDC's favorable response does not constitute a waiver approval. The purpose of CDC's review is to ensure that
-
The civil surgeon or panel physician examined, diagnosed, and classified the applicant according to the Technical Instructions; and
-
The applicant (or person assuming the responsibility on behalf of the applicant) has identified a suitable health care provider in the United States who will provide medical care and treatment for the medical condition if a waiver is granted.
CDC's response, however, carries significant weight in determining what terms, conditions, or controls should be placed on the waiver, and whether USCIS should approve the waiver.
Step-by-Step Checklist
Step 1
Check for qualifying relationship to determine whether the applicant is eligible for the waiver.
Step 2
Gather the necessary documentation for CDC review.
Step 3
Send documentation to CDC.
Step 4
Review CDC response.
Step 5
Analyze whether the waiver should be granted as a matter of discretion.
Step 6
Inform CDC of waiver decision.
1. Qualifying Relationship
To be eligible for the waiver, the applicant must be one of the following:
-
The spouse, parent, child, unmarried son or daughter, [6] or minor unmarried lawfully adopted child [7] of:
-
A U.S. citizen,
-
A person lawfully admitted for permanent residence, or
-
A person who has been issued an immigrant visa.
-
-
Eligible for classification as a self-petitioning spouse or child. [8]
-
The fiancé(e) of a U.S. citizen or the fiancé(e)'s child.
The officer should verify that the existence of the appropriate relationship is well supported in the applicant's file.
A. General
The INA authorizes USCIS to exercise discretion in deciding whether to waive inadmissibility based on a communicable disease of public health significance. [1] USCIS may grant this waiver in accordance with such terms, conditions, [2] and controls, if any, that USCIS considers appropriate after consultation with the Secretary of HHS. [3] This includes the grant of a waiver based on requiring payment of a bond.
Once the officer has verified that the applicant is inadmissible because of a communicable disease of public health significanceand requires a waiver, [4] the officer must go through the following steps to adjudicate the waiver application:
-
Determine whether the applicant meets the eligibility requirements of the waiver;
-
Consult with CDC; and
-
Determine whether the waiver is warranted as a matter of discretion.
B. Special Note on HIV
As of January 4, 2010, HIV infection is no longer defined as a communicable disease of public health significance according to HHS regulations. [5] Therefore, HIV infection does not make an applicant inadmissible if the immigration benefit is adjudicated on or after January 4, 2010, even if the applicant filed the immigration benefit application before January 4, 2010. Officers should administratively close any HIV waiver application that is filed before January 4, 2010 but adjudicated on or after January 4, 2010.
C. Waiver Eligibility and Adjudication
1. Qualifying Relationship
To be eligible for the waiver, the applicant must be one of the following:
-
The spouse, parent, child, unmarried son or daughter, [6] or minor unmarried lawfully adopted child [7] of:
-
A U.S. citizen,
-
A person lawfully admitted for permanent residence, or
-
A person who has been issued an immigrant visa.
-
-
Eligible for classification as a self-petitioning spouse or child. [8]
-
The fiancé(e) of a U.S. citizen or the fiancé(e)'s child.
The officer should verify that the existence of the appropriate relationship is well supported in the applicant's file.
2. Documentation for CDC's Review
As stated above, USCIS can only grant this waiver after it has consulted with CDC. However, CDC's review of 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 a 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 (including the TB supplement, [9] if applicable) that contains all the required signatures, excluding the supporting documentation that is not medically relevant; [10]
-
A copy of the medical examination documentation; [11]
-
Copies of all other medical reports, laboratory results, and evaluations regardless of whether they are connected to the communicable disease of public health significance.
3. Sending Documents to CDC
Officers should email the documents to [email protected].
To request expedited review, officers should indicate in the subject line of the email to CDC that the request is “Urgent.”
4. CDC Response
Once CDC receives and reviews the documents, CDC will forward a response letter with its recommendation to the requesting USCIS office.
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 protected] to obtain a status update.
Upon receipt, the officer should review CDC's response letter to determine next steps.
If CDC's response letter indicates that CDC was satisfied with the initial documentation and that it does not require additional information, then the officer may proceed to the next step of the waiver adjudication. If CDC was not satisfied with the documentation, it may request additional information or recommend additional conditions to be met before the waiver may be granted. In such a case, the officer should issue a Request for Evidence (RFE) for the applicant to provide the additional information or to demonstrate that he or she made the arrangements required by CDC.
If CDC requests it, the officer will need to submit the information obtained through the RFE to CDC to determine whether theadditional information is sufficient. CDC will provide a response letter to the requesting USCIS office advising if the additional information is sufficient. [12]
Once CDC indicates no additional information is needed, the officer may proceed with the next step of the waiver adjudication.
5. Discretion
As is generally the case for waivers, a waiver for communicable diseases of public health significance requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion. Hardship to a qualifying relative is not required for this waiver. [13]
CDC's response in support of granting the waiver 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. [14] If CDC does not issue a favorable recommendation, the officer generally should 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 carries great persuasive weight.
Once a final decision (approval or denial) is made on the waiver, the officer should inform CDC of the decision. The officer should provide a brief statement indicating the final action and date of the action and forward it to CDC by emailing [email protected].
Adjudication Vaccination Requirement Waiver Based on Religious Beliefs or Moral Convictions
Step 1: Review the evidence for any indication that the applicant opposes the vaccination requirement based on religious beliefs or moral convictions.
If YES …
Explain (during the interview or through an RFE) the waiver requirements and request that the applicant file a waiver, if he or she has not already done so. Proceed to Step 3.
If NO …
RFE or interview to ascertain reasons why vaccines were not given. Proceed to Step 2A.
Step 2A: Did the applicant oppose the vaccines?
If YES …
Explain to the applicant (at interview or through RFE) the waiver requirements and request that the applicant file a waiver if not already done so. Proceed to Step 3.
If NO …
Proceed to Step 2B.
Step 2B: Is the applicant willing to obtain the missing vaccine?
If YES …
Issue an RFE for corrective action of the vaccination assessment. Upon receipt of response to RFE, determine whether the vaccine requirement has been met. If the applicant is still missing vaccines, and no blanket waiver is available, begin at Step 1 again.
If NO …
Applicant is inadmissible based on INA 212(a)(1)(A)(ii) (irrespective of the grant of any blanket waivers).
Step 3: Review the waiver application to determine whether the applicant opposes the vaccination requirement in any form.
If YES …
Proceed to Step 4.
If NO …
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii)(irrespective of the grant of any blanket waivers).
Step 4: Review the waiver application to determine whether the applicant opposes the vaccination requirement on account of religious belief or moralconviction.
If YES …
Proceed to Step 5.
If NO …
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii)(irrespective of the grant of any blanket waivers).
Step 5: Analyze whether the waiver application reflects that the applicant's belief is sincere.
If YES …
Proceed to Step 6.
If NO …
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii)(irrespective of the grant of any blanket waivers).
Step 6: Analyze whether the waiver should be granted as a matter of discretion; ordinarily, the finding that the applicant holds sincere religious or moral objections should be sufficient for a grant of the waiver.
If YES …
Grant the waiver.
If NO …
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii)(irrespective of the grant of any blanket waivers).