Inadmissibility on Health-Related Grounds

Inadmissibility on Health-Related Grounds

Prior to entering the United States in an immigrant status, or seeking adjustment of status (AOS) in the United States, all applicants for admission undergo a health screening. This screening, required under INA §212(a)(1) [see article] of the Immigration and Nationality Act, is intended to deem certain aliens with medical diseases-such as certain types of cancer, organ failure and before recently (2009) — HIV-inadmissible from entry into the United States. The justification for such determination is based on the risk that such noncitizens may present significant health or safety hazard to American public or place an undue financial burden on public benefits. Therefore, ways to avoid inadmissibility in situations like that are limited by either qualifying for one of the inadmissibility waivers discussed further in this publication, when such waivers are available, or having a U.S. citizen or a green card holder to assume responsibility for the alien's health-related expenses (insurance, medical bills, etc.) in very limited circumstances when such option is available.

Hence, any individual who is not a citizens of the Unites States will not be eligible for admission to the United States when:

  1. The noncitizen has been determined, relying on applicable regulations of the Unites States Health and Human Services (HSS) [link] current on the day such determination is made, to have a communicable disease of public health significance;
  2. The individual seeks admission as immigrant, or seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and has failed to present documentation of having received required vaccination against vaccine-preventable diseases.
  3. The individual who has been determined, relying on the applicable HHS regulations in operation on the day when the determination is being made:
    1. to have a physical or mental disorder and behavior associated with the disorder that may or has posed a threat to the property, safety, or welfare of this individuals or others;
    2. to have had a physical or mental disorder and a history of behavior associated with the disorder, when such behavior has posed a threat to the property, safety, or welfare of this individual or others and which behavior is likely to recur or to lead to other harmful behavior;
    3. to be a drug abuser or addict. For more information on inadmissibility related to these grounds please click here.

Vaccine preventable diseases

The following diseases are currently specifically designated by the HHS as vaccine preventable:

diphtheria toxoids;
influenza type B;
hepatitis B;
diseases recommended by the
Advisory Committee for Immunization Practices [link].

Certain legally adopted children are exempt

The INA exempts legally adopted children of 10 years of age or younger from the requirement of producing proof of immunization against vaccine preventable diseases if the child in question is either

an orphan, or
had been legally and properly adopted according to the laws of the foreign state, and
is seeking admission to the United States to be adopted by or join with the United States citizen adoptive or prospective adoptive parent,
§101(b)(1)(F) and/or §101(b)(1)( G) [see article]
when this prospective adoptive parent is seeking immigration of the child as his or her immediate relative according to the INA §201(b) [see article], and
prior to the admission of the child, this adoptive parent or prospective adoptive parent has executed an affidavit stating that the parent is aware of the immunization requirements and will ensure that, within 30 days of the child's admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations.

Diseases of significant pubic risk

According to the HHS regulations, the following communicable diseases have been found to pose a significant risk to public health and thus designated to be of public health significance:

1. Chancroid.
2. Gonorrhea.
3. Granuloma inguinal.
4. Leprosy (infectious).
5. Lymphogranuloma Venereum.
6. Syphilis (infectious stage).
7. Tuberculosis (active).
8. Quarantinable diseases designated by
Presidential Executive Order under the Public Health Services Act, Sec. 361(b) [see article]
9. Diseases that meet the criteria of a public health emergency of international concern, which require notification to the World Health Organization (WHO) according to 42 C.F.R. §34.2(b) [see article]; 9 FAM 40.11 N, 9 [PDF version].

HIV is no longer grounds of inadmissibility

HIV is no longer ground of inadmissibility as it was removed from the list as of November 2, 2009. 74 FR 56547-62 [PDF version]. H/V-In Haitian Ctrs. Council v. Sale, 817F.Supp. 336 (E.D.N.Y. 1993),Tom Lantos and Henry Hyde, United States Global Leadership Against mv/AIDS, Tuberculosis and Malaria Reauthorization Act o f 2008, PL11 0-293 (HR 5501) §305. HIV was removed from the list. 4 FR 56547-62 (Nov. 2, 2009). AFM 40.1(b)(2) Special Note on m y , 41.3(.)(2).

Department of State and its officers cannot find a person medically inadmissible without a report from a panel of physicians. 9FAM40.11 N7.3. At the same time, no panel of physician, no matter how reputable, cannot determine inadmissibility of the noncitizen, but only make a recomendation. 9FAM 40.11 N7.1.

Inadmissibility for “single case notification” diseases

World Health Organization (WHO) [link] rules as implemented by the 42 C.F.R. §§34.2(b)(3)(i)-(ii) [see article], make notification to the WHO mandatory when:

1. there is a single case of certain communicable diseases specifically names in the WHO regulations, or
2. where an occurrence of a disease may constitute a public health emergency of international concern.

Both these phrases are specificaly defined in the WHO's International Health Regulations (IRR) which provides that “public health emergency of international concern” is an extraordinary event, which is properly determined:

1. to constitute a public health risk to other member state through the international spread of disease, and
2. to potentially require a coordinated international response.

The IRRs require notification of even a single case of the following diseases, thus making presence of one or more of these diseases in the individual determinative of that individual being inadmissible to the United States for carrying the disease:

1. Smallpox
2. Poliomyelitis from wild-typepoliovirus
3. Pandemic influenza
4. SARS.

Diseases included in the presidential executive order

United States' rules goes beyond the list of diseases identified by the WHO. Hence, additional diseases are included in the Presidential Executive Order and are therefore now a basis for inadmissibility. These are:

1. Cholera
2. Diphtheria
3. Plague
4. Smallpox
5. Yellow fever
6. Viral Hemorrhagic Fevers
7. SARS.

Risk based approach

HHS as well as the Center for Disease Countrol and Prevention (CDC) both adhere to the Risk-Based Approach in making their determination of whether a particular disease shall be designated as of public health significance, thus making its presence in the individual basis for that individual's being inadmissible. Such determination is routingly made when:

1. Certain diseases listed by the WHO that are not “single case” notification cases should still be listed as precluding admissibility.
2. Additional screening and testing in a particular geographic area is necessary for diseases designated by either Presidential Executive Order or the WHO. 42 C.F.R. §§34.3(c),(d)(l); Cable- DOS-l 17586 (Nov. 5, 2008)

In utilizing the Risk-Based Approach HSS as well as the CDC use both medical as well as epidemiological factors to determine whether additional diagnosis testing is needed and when additional designations and/or additional screenings is required. Such determination takes into account:

1. the seriousness of the disease's public health impact;
2. whether the emergence of the disease was unusual or un- expected;
3. the risk of the spread of the disease in the U.S.;
4. the transmissibility and virulence of the disease;
5. the impact of the disease at the geographic location of medical screening; and
6. other specific pathogenic factors that would bear on a disease's ability to threaten the health security of the U.S. 42 C.F.R.,§34.3(d)(2).

Additional screening and testing under the Risk-Based Approach will continue for certain diseases until either HHS or CDC determines the particular situation does not warrant continued designation based upon factors such as the: “results of a disease investigations; response efforts; the effectiveness of containment, and control measures; and the current determination, or termination of the public health emergency…” 73 FR aL58052. Subject to the risk-based approach and screening and testing, HHS/CDC have also added the following illnesses as a basis for inadmissibility:

1. Cholera
2. Pneumonic plague
3. Yellow fever,
4. Viral hemorrhagic fevers (Ebola, Lassa, Marburg);
5. West Nile fever; and
6. Other diseases that are of special national or regional concern (e.g., dengue fever, Rift Valley fever, and meningococcal disease). 73 FR at 58051.

AOS Applicants are not Subject to Risk Based Approach

The Risk-Based approach will only be applied to medical examinations outside the U.S and applicants for Adjustment of Status in the U.S. shall not be subject to additional screening or testing using the risk-based approach, 73 FR at 5805.1-52.

Drug addiction and alcoholism: health-related inadmissibility

In addition to contagious diseases, an alien may also be denied entry into the United States if the alien suffers from drug addiction or abuse or alcohol abuse. The bases of these grounds are rooted in the risk of financial burden and, more importantly, safety risk to the public. Depending on the severity of the alcohol abuse, these issues may be labeled as mental disorders associated with harmful behavior — thus providing for additional inadmissibility grounds under INA §212(a)(1)(iii). All applicants for admission shall keep in mind that routine medical examinations and criminal record checks are also used to discover any alcohol or drug-related issues with an alien seeking entry into the U.S.

The Congress in the Immigration and Nationality Act (INA) has defined drug addiction under section 212(a)(1)(A)(iv) in order to preserve consistency with labeling drug addicts. There is also a distinction between a drug abuser and a drug addict. A drug abuser is defined as one who consumes non-medical use of a substance which is listed in 21 USC 802. Whereas, drug addiction is a non-medical use of substance listed in 21 USC 802 which has resulted in a physical or psychological dependence. As an example, someone who has used a substance listed in 21 USC 802 once for experimentation purposes is not classified as a drug abuser under the INA.

Once an alien is classified as a drug abuser, they are inadmissible into the United States. There are no waivers available for inadmissibility based on drug abuse. Therefore, the applicant must wait three years from the date of last use before they can re-apply for admission into the United States. The rules for alcoholism differ. Since alcoholism is classified as a psychoactive substance, grounds for inadmissibility are inevitable, regardless of any harmful behavior related to alcohol. In such a case, the applicant must wait two years from the date of last alcohol use to re-apply for admission.

It is crucial for applicants classified as drug and/or alcohol abusers to seek professional help and rehabilitation in reputable addiction treatment centers. Although these courses will not exempt an applicant from the two or three year bar from entry to the United States, the courses will provide for a more effective case before immigration officials convincing them that these addictions and/or abuses are no longer an issue. They will also be useful in terms of establishing the time period for which the bars apply since the bars start from the last use of the either substance. Cooperating with one of the reputable treatment centers will definitively establish this timeline.

Waivers of some health related inadmissibility grounds

Pursuant to the INA§212(g)(1), 8 U.S.C. §1182(g)(l) as implemented by 8 C.F.R. §212.7(a) and (b), the Attorney General may waive inadmissibility under:

  1. INA §2l2(a)(I)(A)(i) when:
    1. The noncitizen is the spouse, unmarried son or daughter or minor unmarried lawfully adopted child of a USC, LPR, or a person who has already been issued an immigrant visa (IV), or
    2. The noncitizen has a son or daughter who is a USC, LPR, or a person issued an IV or
    3. The noncitizen is VAWA self-petitioner.
  2. INA §2l2(a)(I)(A)(ii) when:
    1. The noncitizen subsequently produces evidence of having received vaccination against the vaccine-preventable disease or diseases for which the noncitizen has failed to present documentation of previous vaccination, or
    2. A civil surgeon, medical officer, or panel physician (as those terms are defined by section 34.2 of title 42 of the Code of Federal Regulations) certifies, according to such regulations as the Secretary of Health and Human Services may prescribe, that such vaccination would not be medically appropriate for the noncitizen, or
    3. Under such circumstances as the Attorney General provides by regulation, with respect to whom the requirement of such a vaccination would be contrary to the alien's religious beliefs or moral convictions; or
  3. INA §212(a)(1)(A)(iii) when the Attorney general decides in his or her sole discretion to prescribe so in appropriate implementing regulations.

References: INA §212(a)(I)(A)(i)-(iv), 8U.S.C. §1l82(a)(I)(A)(i)-(iv); 42 C.F.R. §§34.2(b)-(d); 9 FAM 40.11 N.9; 73 FR 58047-58 (Oct. 6,2008); AFM at 40.1(b)(2); Memo, Aleinikoff, Exec. Assoc. Comm., HQ2l2.3-P (Sept. 6, 1995), DHS guidelines for waivers are at AFM at 41.3 and Memo, Williams, Ex. Assoc. Comm. Field Operations, HQ 70/2l/1.1,P, AD 0103 (Oct. 17, 2002).