All applicants for immigrant visas, as well as certain non-immigrant applicants, are required to undergo a medical exam performed by a civil surgeon that has been designated by authorities to be qualified to administer the exams. During the exam, physicians are allowed (and sometimes required) to ask questions about an applicant’s prior or current drug and alcohol use. Pursuant to 42 CFR 34.1, medical examinations are allowable for a.) aliens applying for a visa at an embassy or consulate outside the United States; b) aliens arriving in the United States; c.) aliens required by immigration officials to have a medical exam in connection with determination of their admissibility; and d.) aliens applying for adjustment of status in the US.
Civil surgeons use the Technical Instructions for the Medical Examination of Aliens published by the US Centers for Disease Control (CDC) when conducting exams. Under the Technical Instructions, civil surgeons are instructed to inquire about the applicant’s mental status and use of alcohol or other psychoactive substances. Alcohol abuse and alcohol dependence are medically classifiable mental disorders, as are drug addiction. These issues are classifiable as Class A medical conditions that could make an immigrant inadmissible.
If the medical exam did not reveal a Class A medical condition such as drug addiction or alcohol dependence, but subsequent review of the applicant’s criminal history reveals a history of assault, domestic violence or driving under the influence, the offense can be prima facie evidence that a health-related inadmissibility exists, and the consular or immigration officer can request that the applicant undergo a mental status exam. This is true even if the criminal activity does not, in and of itself, make the applicant inadmissible. Consular posts require immigrant visa applicants with a single drunk driving arrest or drunk driving conviction within the prior three calendars years, or two incidents at any time, to have an additional mental status examination with a substance abuse expert or psychiatrist.
Operating a motor vehicle under the influence of alcohol (DUI), or violence that arises as a result of drug addiction or alcohol abuse, can be an associated harmful behavior that poses a threat to the property, safety, or welfare of the alien or others. Typical harmful behaviors include arrest or conviction for driving under the influence with a suspended, revoked or restricted license, arrest or conviction for driving under the influence that resulted in personal injury or death, felony driving under the influence that resulted in a jail sentence, two or more DUI arrests in the past two years, and three or more DUI arrests where one was in the past two years. If the exam reveals substance abuse or substance dependence, and there is evidence of harmful behavior associated with the disorder that is likely to recur, a Class A medical condition is certified on form I-693 (Report of Medical Examination of Alien Seeking Adjustment of Status). A consular officer or immigration officer then determines that the alien is inadmissible based on the Class A condition.
The only recourse an applicant has to fight a drug addiction or alcohol abuser classification is for the CDC to issue an advisory opinion on the subject, overruling the civil surgeon. However, if applicant is inadmissible based on prior harmful behavior, he or she can file a waiver pursuant to section 212(g)(3) on form 601. If the CDC concurs, immigration officials can place terms and conditions on the applicant which can include posting a bond, entering drug rehab, entering alcohol rehab, submitting to regular substance abuse treatment, and submitting to substance abuse testing.
In a recent case, the Administrative Appeals Office (AAO) of USCIS sustained an appeal of the denial of a 221(g) waiver filed by a citizen of the Philippines. The applicant had been found inadmissible under 212(a)(1)(A)(iii)(I) for having a mental disorder (alcohol abuse) and associated behavior that may or has posed a threat. At his immigrant visa medical exam, he was diagnosed by a psychiatrist as having a Class A condition that rendered him inadmissible to the United States. The psychiatrist noted that the applicant needed to enter to enter an addiction treatment center and a two year history of abstinence to be considered in full remission. The applicant filed a 221(g) waiver. In responding to the waiver request, the CDC recommended that he enroll in an alcohol rehab program and be followed by a doctor experienced in handling alcohol-related mental health problems. The AAO found for the applicant, declaring that the the evidence of business ownership and evaluation supporting his claim that he had been sober for a year overcame the finding that he was inadmissible due to a Class A mental disorder.
How do you avoid these Class A findings? Applicants who have a history of drug addiction or alcohol abuse should be pre-screened by a psychiatrist to determine that they do not suffer from active alcohol dependency or drug addiction and to document that the applicant is in at least some type of remission. Further, records related to enrollment at an addiction treatment center or alcohol rehab, addiction counseling and evidence of participation in recovery activities should be readily available.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.