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Immigrant visa waivers
관리자  (Homepage)
2016-05-07 19:54:40, 조회 : 497, 추천 : 145

IV waivers are categorically unavailable for applicants declared inadmissible as drug abusers or addicts.58

However, INA § 212(g)(3) does authorize IV waivers for applicants diagnosed with a mental disorder with associated harmful behavior.59  The waiver application must be submitted on Form I-601 to DOS or USCIS, and is forwarded to CDC’s Division of Global Migration and Quarantine (DGMQ) for review. Form I-601 must be accompanied by a medical report or a statement that arrangements have been made for submission of a medical report, including “a complete medical history of the alien… [and] [f]indings as to the current physical …[and] mental condition of the alien, with information as to prognosis…and with a report of a psychiatric examination.”60

With regard to substance use and associated harmful behavior, this waiver may most commonly apply to applicants with criminal convictions implicating that alcohol abuse has resulted in harm to self, others or property. This may include, but is not limited to: DUI incidents resulting in damage to a person or property, and domestic violence, battery or assault incidents in which alcohol use was involved and well-documented in court and law enforcement documents reviewed by immigration officials. In some rare cases, applicants with multiple DUI convictions, even without any associated harm to persons or property, may be classified by panel physicians as “threaten[ing] the health or safety of the alien or others,” and thus require a waiver to overcome inadmissibility.

In response to these scenarios, the medical reports and waiver application should be prepared very carefully, preferably by medical professionals who have a previous history with and knowledge of the applicant, and always with the guidance of an immigration attorney. Generally, the physician’s report should detail any treatment the applicant has received, medication they have been prescribed, rehabilitation and the applicant’s ability to function productively and self-sufficiently. Similarly, the psychiatric examination should highlight the applicant’s progress toward rehabilitation and, if appropriate, the unlikely nature of recurring harmful behavior related to substance use. All reports should describe the applicant’s habits or pattern of consuming alcohol. Medical professionals should comment as to how, if at all, this pattern of alcohol use inhibits the applicant’s ability to function professionally or care for others in family and social relationships. The reports should specifically mention whether the applicant’s alcohol use has habitually or on any specific occasion posed danger to any other person or property or caused any harm. It should also mention whether the applicant’s drinking has caused any harm or is particularly dangerous to his or her health. The reports should certify, to the extent that it is accurate, that the applicant is a fully functioning member of society whose use of alcohol is not detrimental or dangerous to his or anyone else’s health or safety. If the applicant has an established record of harming or endangering self, others or property while under the influence, the report should address each incident and how the applicant has rehabilitated: physically, through remission, and psychologically, through therapy or self-examination. If medication or a specific treatment plan was prescribed or suggested by a medical professional, this should be reviewed in detail, and the applicant’s positive performance and rehabilitation should be emphasized.  Additionally, the reports should recognize completion of classes (regarding substance use or rehabilitation from particular criminal behavior) or participation in groups such as Alcoholics Anonymous.





58 See INA § 212(g) (setting forth immigrant visa waiver options for all health-related inadmissibility categories except 212(a)(1)(A)(iv)); see also 9 FAM 40.11 N10.4.
59 See also 9 FAM 40.11 N10.3.
60 See DHS, USCIS, “Instructions for I-601, Application for Waiver of Grounds of Inadmissibility.”


As a matter of law, the medical reports are the most important pieces of the IV waiver application package. However, as a practical matter, other documents can also be helpful to establish an overall tone of rehabilitation and reform from prior incidents of alcohol use or abuse. A conciliatory affidavit from the applicant describing his or her personal strides to rehabilitate and achieve change to better the lives their family may be appropriate or meaningful. Likewise, affidavits or letters of support from family and close friends regarding the applicant’s rehabilitation and positive character may help round out the waiver application.

If the IV waiver is approved, the applicant must provide a post-entry evaluation report conducted by a medical facility approved by the U.S. Public Health Service to CDC within 30 days after entering the United States.61  DHS may also restrict the waiver to certain terms, conditions or controls it deems appropriate on a case-by-case basis, which may include posting of a bond.62

CONCLUSION

Health-related inadmissibility due to drug or alcohol use is an important issue to understand because it can result in unexpected denials at the critical end-stages of visa applications. The CDC’s technical instructions are somewhat difficult to wade through and the definitions of inadmissibility are harsh. If an applicant’s substance use is not disclosed or discovered until the time of their visa interview, the case may be complicated and delayed by a referral to a panel physician or civil surgeon. However, a basic understanding of all these issues can be a great asset in analyzing your client’s record, anticipating adverse consequences, setting client expectations and making sure the case doesn’t “go to pot.”



61 See 8 CFR § 212.7(b)(4)(ii).
62 INA § 212(g)(3); 8 CFR § 212.7(b)(5).






Table 6

Reporting Results of Evaluation for Psychoactive Substance
Abuse




Current nonmedical use or use within the last 3 years of a substance listed in section 202 of the Controlled Substances Act

Class A condition

List substance(s) used.

History of nonmedical use of a substance listed in section 202 of the Controlled Substances Act

No use in last 3 years

Class B condition

Note whether dysfunctional behavior or associated physical disorder is present.

Current abuse or abuse within the last 2 years of a psychoactive substance other than those listed in section 202 of the Controlled Substances Act

Class A condition

List substance(s) used.

History of abuse of a psychoactive substance other than those listed in section 202 of the Controlled Substances act

No use in the last 2 years

Class B condition

Note whether dysfunctional behavior or associated physical disorder is present.

Findings

Record on Medical Report Form


Table 5

Reporting Results of the Evaluation for Mental and Physical
Disorders with Associated Harmful Behavior*




No current evidence  of physical  or mental disorder

No history of physical  or msnta.l disorder  and no history_ of harmful behavior

No Class A or Class B  condition
Mental  shortcomings due solely to lack of education  and  no  harmful behavior
No Class A or Class B  condition

Mental condition, with or without  harmful behavior,  attributable to remediable physical causes; or temporary--caused by a toxin, medically  prescribed  dru9., or disease

(Treat underlying  condition  or reter for treatment;  complete  medical  report form after reevaluation.)

History of physical  or mental disorder  and history of associated harmful behavior

Physical or mental disorder  not currently present and harmful behavior  not likely to recur **

No Class A or Class B  condition

(Report diagno!liS  and reason(s)  for judging that harmful behavior  will not recur.)

Current evidence  of a physical  or mental disord•r  and associated harmful behavior  or history of associated harmful behavior

Class A condition

(Report diagnosis  and description of harmful behavior.)

History of physical  or mental disorder  and history of associated harmful behavior, and harmful behavior  likely to recur

Class A condition

(Report diagnosis,  description of harmful behavior,  and reason(s)  for judging that harmful behavior  is likely to recur.)

Current evidence of a physical  or mental disorder  but no history of associated harmful behavior

Class B  condition

(Report diagnosis.)

History of physical  or mental disorder  and history of associated  harmful behavior

Physical  or mental condition  controlled by medication or in remission.***   No currently associated  harmful behavior,  and behavior judged not likely to recur.****

Class B   condition

(Report diagnosis,  description of harmful behavior  and reason(s)  for judging that behavior  is not likely to recur.)

Findinga         Record on Medical  Report Form
































•Includes alcohol abuse/dependence, which, under the new law, is to be considered aa any other mental  or physical  disorder with associated  harmful behavior.

••E.g., an otherwise  normal person with a history of a physical or mental disorder  and associated harmful behavior  that is unlikely  to recur  (e.g., suicide attempt during reactive  depression over the death of a spouse, and the person is no longer considered  a suicidal  risk).

***E.g.,  an alien with a history of har.mful behavior  due to a disorder or condition that continues but that has been managed with medication (e.g., person who has a manic-depressive illness that is treated with lithium) or that is in remdssion.

****The behavior can be judged not likely to recur if the alien is able to demonstrate that the disorder  is in remission, r ission being defined as no pattern of the behavioral  element of the disorder  for the past 2 years  {5 years in the case of antisocial  personality disorder, impulse control disorders  not otherwise  classified, paraphilias that involve behaviors  that threaten others, and conduct disorders); or the alien1 B condition  is controlled  by medication  and the alien certifies in writing that he or she will continue  medication or other treatment  to control  the disorder  and prevent  harmful behavior.
III-13


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세금과 법률
세금과 법률, 부동산경매, 토지수용, 이민(TAX & LAW, REAL ESTATE, IMMIGRATION)
변호사 이재욱(한국, 미국)
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세금과 법률, 부동산경매, 토지수용, 이민
(TAX & LAW, REAL ESTATE, IMMIGRATION)

TAX & LAW, ART DEALING, IMMIGRATION
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email: jawala.lee@gmail.com
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