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Medical Grounds of Inadmissibility (Exclusion)

Written by Henry J. Chang

Communicable Diseases

Under INA §212(a)(1)(A)(i), an alien who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome, is inadmissible. The Department of Health and Human Services regulations at 42 CFR §34.2(b) define the term"communicable disease of public health significance" as including: (a) chancroid; (b) gonorrhea; (c) granuloma inguinale; (d) human immunodeficiency virus (HIV) infection; (e) leprosy, infectious; (f) lymphogranuloma venereum; (g) syphilis, infectious stage; and (h) tuberculosis, active.

Under INA §212(g)(1), a waiver is available for this ground of exclusion if the alien is the spouse or unmarried son or daughter or the minor unmarried and lawfully adopted child of a United States citizen, an alien lawfully admitted for permanent residence or an alien who has been issued an immigrant visa.

Proof of Vaccination Requirement [Applies to applications for immigrant visas or for adjustment of status filed after September 30, 1996]

Under the new INA §212(a)(1)(A)(ii), aliens who seek admission as an immigrant or who seeks to adjust status to that of permanent resident is excludable and who fail to present documentation of their vaccinations against vaccine-preventable diseases, including mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the advisory committee for immunization practices. A waiver is available under the new INA §212(g)(2) in the case of an alien:

  1. who receives vaccination against the vaccine preventable disease or diseases for which the alien failed to present documentation;

  2. for whom a civil surgeon, medical officer or panel physician certifies, according to regulations prescribed by the Secretary of Health and Human Services, that such vaccination would not be appropriate; or

  3. under such circumstances as the Attorney General provides by regulation, with respect to whom the requirement of such a vaccination would be contrary to the alien's religious beliefs or moral convictions.

Exception from Immunization Requirement for Adopted children 10 Years of Age or Younger

According to INA §212(a)(1)(C), the vaccination requirment shall not apply to a child who--

  1. Is 10 years of age or younger;
  2. Is a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence; and
  3. Is seeking an immigrant visa as an immediate relative, if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child's admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.

Physical or Mental Disorders

Under INA §212(a)(1)(A)(iii) [formerly INA §212(a)(1)(A)(ii)], aliens are excludable if they have been determined in accordance with the regulations of the Secretary of Health and Human Services in consultation with the Attorney General:

  1. to have 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 the alien or others; or

  2. to have 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 the alien or others and which behavior is likely to recur or lead to other harmful behavior.
A waiver of this ground is available under INA §212(g)(3) [formerly INA §212(g)(2)] subject to any terms, conditions and controls, if any, imposed by the Attorney General in his discretion.

While alcoholism constitutes a medical condition, this ground does not explicitly refer to alcoholics or alcoholism. An alcoholic is not excludable unless there is a current or past history of harmful behavior associated with the disorder which has posed or is likely to pose a threat to the property, safety or welfare of the alien or others. A conviction for driving while impaired has been interpreted as constituting evidence of a medical disorder and associated harmful behavior.

Drug Abusers and Drug Addicts

Under INA §212(a)(1)(A)(iv) [formerly INA §212(a)(1)(A)(iii)] a person who is determined in accordance with the regulations of the Secretary of Health and Human Services to be a drug abuser or drug addict is excludable. Drug abuse is defined as the non-medical use of a substance listed in §202 of the Controlled Substances Act even if the use has not resulted in physical or psychological dependence.


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