U.S. Citizenship and Immigration Services and the U.S. Department of State continue to intensify their focus on alcohol and drug use as they relate to immigration processing. Therefore, it is increasingly important that applicants for immigration status or U.S. visas understand the consequences that their personal, medical, and criminal histories may have for their ability to successfully complete their path to immigration status in the U.S. During an applicant’s immigrant medical examination, the examining physician is required to ask routine questions regarding any psychoactive drug and alcohol use, any history of psychiatric illness or institutionalization, and any history of harmful behavior. Severe consequences can result for immigration processing, depending on a person’s answers to the physician’s questions and his or her driving/criminal history.
Under the Immigration and Nationality Act (INA), applicants for immigrant visas and adjustment of status to permanent residence (“green card” status), and some nonimmigrant visas, must have medical examinations to determine whether they have any health conditions that would make them “inadmissible,” meaning they would be barred from immigration status in the United States. Among the problematic health conditions for immigration processing are illnesses such as tuberculosis, syphilis, and HIV. Also included among the illnesses that can result in inadmissibility are mental disorders related to behavior that can pose or already has imposed a threat to the property, safety, or welfare of the foreign national or others. Alcohol abuse and alcohol dependence have been defined by the U.S. Secretary of Health and Human Services to be included in these types of illnesses and can result in a bar to immigration status when associated with harmful behavior. Harmful behavior is defined as a dangerous action or series of actions that has resulted in injury (psychological or physical) to the foreign national or another person, that has threatened the health or safety of the foreign national or another person, or that has resulted in property damage. Controlled substance use/abuse can also result in inadmissibility, with or without association with harmful behavior.
Alcohol & Health-Related Inadmissibility
If an immigration medical examination results in a determination by the physician that a foreign national has a medical condition of alcohol abuse or alcohol dependence, along with harmful behavior, the foreign national will generally be found inadmissible. A record of arrests and/or convictions for alcohol-related driving incidents may be a trigger for additional questions regarding alcohol use, and can bolster a physician’s or government officer’s determination of the existence of harmful behavior.
Even if the initial medical exam turns out well, when an immigration officer reviews an applicant’s paperwork and conducts an interview prior to status/visa approval, a medical reexamination may be required. This can be deemed necessary if it is apparent that the applicant has a significant criminal record of alcohol-related driving incidents that were not considered by the physician during the original medical examination. Specifically, alcohol-related driving incidents that also involve driving under suspension/revocation or injury to another party, as well as multiple arrests or convictions for alcohol-related driving incidents, and incidents classified as felonies can act as triggers.
An applicant’s reexamination should be limited to a mental status evaluation, specifically involving the alcohol-related events. If the physician has indicated on the originally submitted medical examination form that these incidents were considered and no subsequent incidents have occurred, reexamination of the person will not be required. If the physician has properly examined the person for dangerous mental status due to alcohol-related events and made a determination that the applicant does not meet the criteria for medical inadmissibility, officers of USCIS or the Department of State cannot override this determination. In exceptional cases, however, if a government examiner objects to results of the medical examination, s/he may seek a review of the physician’s findings by the U.S. Public Health Service.
Medical reexamination may also be required where other circumstances indicate a potential medical ground of inadmissibility that was not considered during the medical examination. Examples include: arrests/charges involving assault or domestic violence where alcohol or other psychoactive substances were a contributing factor; other crimes that may indicate a mental health disorder; or a history of hospitalization for mental health problems. In each of these cases, reexamination is only necessary if the medical examination results indicate that these special circumstances were not considered during the examination.
Waiver Still Available
A foreign national who is found inadmissible due to health-related factors may still file an I-601 waiver application, seeking an exception to inadmissibility based on special circumstances; approval is not guaranteed. Furthermore, the federal government may condition the waiver’s approval upon certain terms, conditions, or controls, including the posting of a monetary bond.
Drugs & Health-Related Inadmissibility
If an immigration medical examination reveals a history of drug use (or drug-related criminal convictions), the examining physician will need to conduct an analysis to determine whether or not the applicant should be classified as inadmissible due to a medical condition as a drug abuser. If a physician concludes that a person is now engaging in non-medical use of a controlled substance or has done so within the past three years, the result can be a finding of a medical condition as a drug abuser, leading to inadmissibility without the availability of a waiver (in some instances, a single instance of experimentation can be forgiven).
Drugs, Alcohol, & Criminal Inadmissibility
A person who is not found inadmissible on health-related grounds due to alcohol or drug use may still be found inadmissible under the criminal provisions of the Immigration and Nationality Act. In addition to providing for inadmissibility based on crimes involving domestic violence, controlled substance violations, and weapons offenses (among others), the INA separately provides for inadmissibility in cases where an applicant has been convicted of a “crime involving moral turpitude.” Generally speaking, a crime involves moral turpitude when the language of the statute involves specific intent (and in some cases, recklessness) with respect to the commission of a bad or malicious act, and proof of this mental state is required to sustain a conviction. (The classic example is a crime of theft, where the statute’s language requires proof that the defendant intended to permanently deprive an owner of his or her property.) Many alcohol-related driving offenses are not considered to be crimes of moral turpitude, but where they include aggravating circumstances such as serious injury to persons or property, or coincidence with driving under suspension/revocation, the courts have found that these cases may well involve the malicious or depraved mental states that rise to the level of moral turpitude.
What to Do
Potential applicants for immigrant visas, adjustment of status, and certain other visa classifications should consult with a qualified immigration attorney if they have ever been arrested or if they have a history of alcohol or drug use. The attorneys at Landis & Arn, P.A., are prepared to evaluate cases involving these issues, to assist in determining whether health-related or criminal grounds of inadmissibility may apply, and whether any bars to immigration status can be overcome.