- Medical Grounds for Visa Ineligibility Revised
- September 3, 2010
- Law Firm: Goulder Immigration Law Firm - Greensboro Office
The Department of State recently made substantial changes to its policies on medical grounds of inadmissibility (ineligibility for a US visa). Medical grounds of inadmissibility focus on physical or mental disorders with harmful behavior, and on substance-related disorders, corresponding to INA 212(a)(1)(A)(iii) and (iv), respectively. The new regulations are published in the Foreign Affairs Manual (FAM) 9 FAM 40.11 N11.
The mere presence of a physical or mental disorder does not by itself render a visa applicant inadmissible to the US. The trigger to inadmissibility is the presence of associated harmful behavior, and only harmful behavior that is associated with a physical or mental disorder is relevant for the purpose of determining a medical inadmissibility.
Key FAM definitions include:
A "physical disorder" is a clinically diagnosed medical condition where the focus of attention is physical manifestations.
A "mental disorder" is a health condition characterized by alterations in thinking, mood or behavior.
"Harmful behavior" is an action associated with a physical or mental disorder that causes (or has caused) one or more of the following:
1. Serious injury (psychological or physical) to the foreign national or others. An example of harmful behavior to the foreign national is attempted suicide; an example of harmful behavior to others is pedophilia.
2. A serious threat to the health or safety of the foreign national or others. An example of a serious threat to both the foreign national and to others is driving while intoxicated.
3. Major property damage.
A “Substance-related disorder” can involve one of the following:
1. Substance dependence ¿ compulsive long-term use of alcohol or other psychoactive substance despite significant problems (physical, social and others).
2. Substance abuse ¿ a pattern of recurrent use of alcohol or other psychoactive substance despite adverse consequences or impairment.
“Remission” is "a period of at least 12 months during which no substance use or associated harmful behavior have occurred."
Class "A" medical conditions render a visa applicant ineligible for a visa.
Class "B" medical conditions do not render a visa applicant ineligible for a visa, even though the applicant has a disease, disability or abnormality amounting to a substantial departure from well-being.
Alcohol Abuse or Dependence Alcohol abuse or alcohol dependence constitutes a medical condition that may result in inadmissibility. Alcohol and drug abuse issues are referred to a Department of State panel physician for diagnosis of alcohol abuse or dependence; but that diagnosis alone, is not supposed to make an applicant ineligible to receive a visa unless there is evidence of associated harmful behavior which has, or is likely to pose a threat to the property, safety or welfare of the foreign national or others.
Consular officers refer nonimmigrant and immigrant visa applicants to panel physicians when the applicant has a single alcohol-related arrest or conviction within the past five years, or if the applicant has two or more such arrests or convictions within the past decade.
Consular officers also refer applicants to panel physicians if, in the absence of DUI arrests or convictions, there is any other evidence to suggest that the visa applicant has an alcohol problem.
Role of Panel Physicians
In performing a medical examination the panel physician is responsible for identifying and diagnosing:
Physical or mental disorders (including alcohol-related disorders);
Harmful behavior associated with a disorder; and,
Determining the remission status of any previously diagnosed disorder.
Class "A" or Class "B" Medical Conditions. Panel physicians may make the following diagnoses with regard to applicants referred for examination:
Class "A": The applicant has a physical or mental disorder with associated harmful behavior.
Class "A": The applicant has a disorder characterized by substance abuse or dependence.
Class "B": The applicant has a physical or mental disorder with no associated harmful behavior.
Class "B": The applicant has a history of a physical or mental disorder with associated harmful behavior that is unlikely to recur.
Class "B" ¿ The applicant's substance abuse or dependence is in full remission.
Neither "A" nor "B": The applicant has not been diagnosed as having a physical or mental disorder or a substance-related disorder.
Waivers for Immigrant Visa Applicants An immigrant visa applicant who is determined to have a communicable disease of public health significance may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(i).
An immigrant visa applicant who objects on religious or moral grounds to receiving required vaccinations against vaccine-preventable diseases may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(ii).
An immigrant visa applicant who is determined to have a physical or mental disorder with associated harmful behavior may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(iii).
An immigrant visa applicant diagnosed with substance abuse or addiction is not eligible for waiver relief of the inadmissibility set forth in INA 212(a)(1)(A)(iv).
Waivers for Nonimmigrant Visa Applicants. Consular officers may recommend waivers per 212(d)(3)(A) for any of the medical-related grounds of inadmissibility set forth in 212(a)(1)(A).