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APPEALS AND WAIVERS OF HEALTH-RELATED INADMISSIBILITY DETERMINATIONS BASED ON SUBSTANCE USE
||2016-05-07 19:54:22, 조회 : 483, 추천 : 142
If an applicant is declared inadmissible on health-related grounds because of substance use, he or she still may have several options to be admitted to the United States. First, although on a practical level this strategy may have a very low chance of success, the applicant may request an advisory opinion or a medical re-examination by the CDC to contest a Class A diagnosis triggering inadmissibility. Second, the applicant may be eligible for a waiver of inadmissibility.
Seeking an Advisory Opinion or Medical Re-examination by the CDC after an Erroneous Class A Determination by a Medical Examiner
If a visa applicant disagrees with a determination made by a panel physician characterizing the applicant as inadmissible on health-related grounds, they may request the consular officer to seek an advisory opinion from the CDC.44 A CDC consultant physician will then review the panel physician’s report and Class A diagnosis of the applicant, and will provide the consular officer with an opinion as to whether the diagnosis was correctly made.45
42 CFR § 34.8 also authorizes the CDC to re-examine the medical condition of an applicant classified by a civil surgeon or a panel physician as having a Class A condition triggering inadmissibility. However, there is no regulatory authority for applicants or attorneys to initiate this re-examination process directly with CDC. It appears that appealing parties must communicate with DHS to request a re-examination, although the process for doing so is unclear.46 As part of the re-examination process, “a board of medical officers” convened by CDC will review all records submitted by the applicant and other witnesses, medical history documents and reports submitted by other physicians who have examined the applicant’s mental condition.47 The board will notify the applicant of a time and place for an official medical re-examination, and may discretionarily allow oral or written medical expert testimony on the applicant’s behalf.48
44 AILA, “Visa Office Clarification on Drug Abuse/Addict Ineligibility Standard,” published on AILA InfoNet at Doc. No. 06052460 (posted May 24, 2006).
46 See 42 CFR § 34.8(a)(2) (stating that re-examination may occur “[u]pon an appeal to the INS by an alien who … has been certified for a Class A condition”) (emphasis added). A CDC representative
acknowledged to the author that there is no clear interagency procedure set in place for applicants to
communicate with DHS to request a medical re-examination by CDC. Telephone interview with Joe Foster, Legal Counsel, CDC (Feb. 29, 2008). However, the CDC representative also maintained that, according to federal regulations, it is not appropriate for applicants or attorneys to request such an
The board’s decision is final and cannot be appealed or reconsidered except upon express authorization of the Director of the CDC.49
As a practical matter, either of these options may be a futile exercise for an applicant deemed inadmissible pursuant to findings in the medical examiner’s report. According to practitioners’ reports, CDC advisory opinions very rarely result in reversal of a panel physician’s Class A diagnosis of an applicant. Additionally, CDC re- examinations of applicants rarely occur at all,50 although their uncommonness may be attributable to logistical difficulties in initiating the re-examination process through DHS.
Waivers of Health-Related Inadmissibility Based on Substance Use
Non-immigrant visa waivers
INA § 212(d)(3) allows for discretionary waivers of all grounds of health-related inadmissibility for NIV applicants.51 In considering whether to grant an NIV waiver, a consular officer will consider and balance three factors: (1) the recency and seriousness of the condition causing inadmissibility, (2) the reasons for the applicant’s travel to the United States, and (3) the positive or negative effect, if any, of the applicant’s travel on U.S. public interests.52 It is important to note that waivers are not “limited to humanitarian or other exceptional cases” and that a consular officer can recommend a waiver “for any legitimate purpose.”53 Consular officers may recommend multiple-entry waivers for applicants deemed inadmissible as drug abusers, but waivers for applicants classified as drug addicts or having mental disorders are only eligible for single-entry waivers.54
To support an NIV waiver application, there is no required form,55 but practitioners may submit supporting evidence to the consular officer. Such evidence should include a declaration from the applicant and letters of support from friends, family, religious leaders or others with a personal or professional relationship with the applicant. These statements should directly address the applicant’s substance use, but should highlight that he or she is an infrequent user, in remission or has no history of harmful behavior associated with use. The statements should also emphasize that the applicant poses no threat or risk to U.S. national security or public health based on their history of substance use. Depending on the type of visa the applicant is seeking, you may also be able to present compelling evidence regarding the importance of the applicant’s travel to the United States. For example, if the applicant has been invited to engage in business activities in the United States, you may wish to include letters of support from U.S. business partners describing the importance of the applicant’s contributions and the positive ways his or her travel stands to affect the U.S. economy. If the applicant will only be a temporary visitor for personal or family reasons, it is still recommendable to submit evidence to clarify the personal importance of the trip to the United States.
examination directly from the CDC. Id. Clarifying how an applicant should request a medical re- examination from CDC appears to be an issue ripe for AILA liaison clarification with USCIS.
47 See 42 CFR § 34.8(c).
48 See id. at §§ 34.8(d)-(f).
49 Id. at § 34.8(k).
50 Telephone interview Joe Foster, Legal Counsel, CDC (Feb. 29, 2008).
51 See also 9 FAM 40.11 N11.
52 9 FAM 40.301 N3(b); see also Matter of Hranka, 16 I&N Dec. 491 (BIA 1978) (the seminal case in the area of INA § 212(d)(3) waivers).
53 9 FAM 40.301 N3(a). The FAM provides several examples of a “legitimate purpose,” including “family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” Id.
54 Id. at N.6.3(1) & (2).
55 The one exception is for visa-exempt Canadian applicants, who must submit NIV waivers on Form I-192 to CBP officials at a port of entry.
Finally, if the applicant may need medical treatment in the United States related to a past history of substance use or seeks entry to attend a rehabilitation facility, it is critically important to submit evidence of financial resources proving their ability to pay for treatment.56
As a matter of procedure, a consular officer must determine that an applicant is inadmissible to the United States before the post may consider a § 212(d)(3) waiver application. The applicant may be found inadmissible pursuant to a panel physician’s Class A diagnosis made during the preceding three years, or the consular officer may directly refer the applicant for a new medical examination if substance use problems arise during the visa interview. In cases where the applicant is referred to a panel physician,
the applicant should be prepared to disclose their substance use history, as well as
provide related records to the panel physician. If drug use during the past three years will be at issue, it is recommendable for the applicant to also obtain independent drug test results showing that they have not used for a significant period of time. Clean drug tests can be significant proof that an applicant’s use is neither recent nor serious, and can strongly support issuance of a waiver even if use has occurred within the past three years.
Once an applicant is declared inadmissible, evidence supporting the waiver application may be submitted, and the reviewing consular officer or their supervisor will make a recommendation either to grant or deny the waiver.57 If the recommendation is favorable, DOS forwards the application to the Admissibility Review Office (ARO) in Washington, D.C. for final adjudication. NIV waivers routinely take 30-60 days to reach a final adjudication, and if approved, the consular post will issue the visa with a “§
Although all § 212(d)(3) waivers are adjudicated on a case-by-case basis, the factors in the FAM and controlling case law are a good common-sense guide for which waiver cases may be viable. Applicants who can present documentation proving remission or rehabilitation over a significant period of time, or can otherwise reasonably distance themselves from their last use by a year or more, may have better chances of being granted a waiver. Likewise, applicants with a very compelling reason to travel to the United States or whose presence would measurably benefit the United States may also present viable waiver cases. Conversely, applicants who are found to have recently engaged in substance use (especially if linked to harm to self or others), have a long pattern of use with no demonstrable rehabilitation and have no compelling reason to visit the United States may encounter difficulties in obtaining a waiver.
56 See 9 FAM 40.11 N11.
57 If the consular post’s recommendation is to deny the waiver, the post will forward the waiver application request to a central DOS authority for review and recommendation. See 9 FAM 40.301 N6.2-1.
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