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Disability & Immigration Law in the United States of America
March 23, 2012
April 13, 2011
January 20, 2011
Immigration to the United States of America is governed by the Immigration and Nationality Act (INA).
According to s. 221(d) of the INA, all individuals applying for an immigrant visa must submit to a mental and physical medical examination before the visa is issued. Information about the health of an applicant for a visa is acquired through a medical examination by an authorized civil surgeon who must perform the examination according to the specific guidelines published by the Center for Disease Control and Prevention. An applicant’s own admission is not sufficient to uphold a finding of inadmissibility on medical grounds.
Under INA §212(a)(1)(A)(iii) someone is excludable if they have been determined to have:
1. a physical or mental disorder and a history of behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of themselves or others; or
2. previously had a physical or mental disorder and a history or behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of themselves or others and which behavior is likely to recur or lead to other harmful behavior.
Harmful behavior is defined under section 212(a)(1)(A)(iii) of the Act as behavior that “may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.” The INA specifically states that “mental retardation” does not render someone inadmissible unless the applicant is or has exhibited harmful behaviour associated with the diagnosis.”
Under INA §212(a)(4), an applicant who is likely to become a public charge at any time is excludable. The INS looks at the totality of circumstances in making its determination including their age, capacity to earn a living, health, family circumstances, employment history and whether or not they have ever received public assistance. Most immigrants must submit an affidavit of support as evidence that they will not become a public charge. The affidavit is required of all family based immigrants. The affidavit of support creates an enforceable legal obligation and the US government can sue to recover any public benefits provided in the first five years of residence.
According to 8 USC 1222 - Sec. 1222, an applicant who has been issued an adverse medical certificate may appeal only to an additional medical board and not to a judicial tribunal. They may introduce one expert medical witness at her own cost and expense.
A waiver of medical grounds of inadmissibility is available under INA §212 subject to any terms, conditions and controls, if any, imposed by the Attorney General. There are waivers available for most of the health grounds of inadmissibility except for those with drug addiction issues.
An applicant with a communicable disease may receive a wavier if the applicant has the requisite relationship to a U.S. citizen or permanent resident spouse, unmarried child, unmarried minor lawfully adopted child or parent and is eligible for permanent residence status except for the health related grounds of inadmissibility.
A person with a physical or mental disorder who is found inadmissible must meet special conditions required by the Bureau of Citizenship & Immigration Services. The applicant must submit a detailed medical history and, in the case of mental illness, the applicant must also show that he or she has recovered. The applicant must have a statement from a hospital or physician affirming that it will examine the immigrant upon admission.
Comparison to Canada
The US immigration system is significantly more flexible and open with regards to disability than the Canadian system. Applicants with mental or physical disabilities are only excluded if they are at risk of harmful behavior, pose a threat to either themselves or others or are likely to become a public charge. Because social and medical services are much more privatized, the American system is not as concerned about immigrants creating excessive demand.
Where an applicant is refused on medical grounds however, the American system offers a much narrower avenue of appeal. The appeal is only to an additional medical board and not to the courts. As a result there is very little jurisprudence with regards to immigration and disability.
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