A an adult Korean adoptee who is awaiting deportation from an immigration detention center in Washington State because he lacks American citizenship, even though he has lived in the United States since he was 3 years old.

Last month, an immigration court denied his final request to stay in the United States.

Officials at South Korea’s Ministry say they know of at least five adoptees who were deported back from the United States. But advocates for Korean adoptees say there may be more than twice as many, some undocumented.
Tossed back to a country they had left decades ago, these adoptees were once again foreigners struggling to adapt to an unfamiliar culture and language.

This can happen to a person who was adopted from a foreign country without following a proper procedure for applying for legal document, a proof his or her US citizenship. Sometimes people don't even realize the seriousness of their situation and lack of legal status in the United States until it's too late.

​Read more here. 

TRAC, Nov. 10, 2016 -

TRAC has just published the ninth in its long running series of reports covering each Immigration Judge's decisions on asylum cases. The latest report series consists of 268 separate reports and includes each Immigration Judge who decided at least 100 asylum cases between FY 2011 and FY 2016.

Each individual report provides a short biography for that judge, along with details on the judge's overall denial rates during this six year period. Separate charts provide a time series view of the judge's decisions year-by-year, along with a comparison of the judge's denial rate as contrasted with the rate for the nation as a whole, along with a comparison with just those judges sitting on the same court.

Some judge's asylum denial rate could be as low as 30%, while another judge's denial rate could be almost 100%.

​For example, in 2016, Omaha, Nebraska Immigration Court asylum denial rate is approx. 80%. Average national denial rate is approx. 50%.

To see any particular Judge's denial rate statistics, use the drop down menu.

Reasons for judge-to-judge differences in asylum denial rates are highlighted including whether the asylum seeker was represented or not, and the countries from which these individuals came. This is contrasted with patterns for the United States as a whole. Information presented is current through the end of September 2016.

To view a particular judge's report, go to:
http://trac.syr.edu/immigration/reports/judgereports/

For an index to the full list of TRAC's free immigration tools go to:
http://trac.syr.edu/imm/tools/

 National Visa Center / AILA DOS Liaison Committee Meeting on November 3, 2016 in Portsmouth, NH

​SUBMITTED QUESTIONS & ANSWERS can be viewed here or posted below.

1. Policy Clearances.

Some countries will only send police clearances directly to the Embassy/ Consulate (e.g. Hong Kong). How NVC is notified that when Embassy/ Consulate has received the required police clearances so that an appointment can be scheduled? How are attorneys/applicants notified? RESPONSE: 9 FAM 504.4-4(A) outlines the basic document requirements for the immigrant visa process. The Visa Reciprocity Schedule provides further clarification as to availability of documents in a particular country. NVC uses the Reciprocity Schedule during the collection process to determine whether or not an applicant needs to submit the police certificate to NVC for review. If the Reciprocity Schedule indicates the local police authority sends the document directly to the Consular Section, NVC will not request a copy of the document from the applicant and will set an appointment when the case is otherwise documentarily complete. The attorney/applicant should ensure the police certificate is sent to the Consular Section prior to the interview. The Consular Officer overseas will determine the acceptability of the document at the time of adjudication. Please check travel.state.gov, post supplements and post websites for additional guidance.

2. Document Checklists.

Attorneys report that they continue to receive checklists from NVC asking for documents that have already been submitted. Should attorneys resend the same documents to NVC? Or should they send an email to [email protected] to request clarification? RESPONSE: When NVC sends a checklist letter for a document already submitted, please respond to NVC’s concerns by providing a written explanation to the [email protected] mailbox. NVC will re-review the case file in an attempt to locate the document and update the case record accordingly. If attorneys or applicants receive a checklist letter after an appointment has been made and the case has gone to post, applicants should make sure to bring copies of the items requested in the latest or final checklist letter.

3. Civil Documents.

Please confirm NVC’s requirements regarding translation of civil documents. For example, are translations required where the document is to be sent to a post where consular officers speak the language in which the documents are written? Where can applicants find information as to which documents require translations? RESPONSE: All documents not written in English or the official language of the country in which you are applying for a visa must be accompanied by certified translations. The translation must include a statement signed by the translator stating that the: Page 2  Translation is accurate and  The translator is competent to translate. Some embassies or consulates may have additional requirements. Applicants should always follow the documentary instructions on the embassy or consulate’s interview instructions on travel.state.gov.

4. CSPA.

It appears that NVC generally does not issue fee bills to dependent children who have turned 21, as they are not able to determine whether the child can benefit under CSPA when the priority date is not current. Often, these children will not age out until 1-2 years in the future; however, if the attorney waits until the priority date is current to request the child’s fee bill, valuable time is lost from the time the fee bill is requested to the time it is actually issued and paid. As such, would NVC consider issuing fee bills for such dependent children when the fee bills are issued for the rest of the family? Allowing the child’s immigrant visa (IV) fee to be paid before the CSPA age is determined by the consular officer at the IV interview would enable the dependent child to “seek to acquire” and potentially lock in their CSPA age, prevent delays for the rest of the family’s IV interviews, ensure that the child is able to immigrate with the rest of the family, and prevent NVC from receiving an influx of fee bill requests when priority dates advance. AILA understands that there may be some cases where the fee bill is paid but the child ages out before the priority date becomes current but notes that most in this situation would opt to pay the fee bill to lock in the CSPA age despite this risk. AILA has raised this with NVC in the past but has not received a final answer from the NVC or Visa Office; as such, please confirm whether DOS has made a decision on whether to issue fee bills to such dependents and allow them to potentially lock in their CSPA age when their parent is current under the Filing Date chart. RESPONSE: The Visa Office and NVC are currently examining CSPA guidelines, including the question of whether or not NVC would be able to issue an IV fee bill in these circumstances.

5. Duplicate Notices.

AILA has received reports from members regarding approved I-730 cases where the attorney and applicant are getting identical approval/transfer notices from NVC at least every other, and sometimes twice a day. Is NVC aware of this issue and if so, is there a reason for the duplicate notices? RESPONSE: Yes, the public made us aware of this issue and we were able to quickly address the underlying technical issue. We appreciate AILA’s regular feedback on these types of issues. Individual attorneys experiencing potential computer errors can use the attorney email, [email protected], to provide feedback. For online issues with CEAC or CTRAC, we recommend providing screenshots of any error messages or incongruities. Page 3

6. Transfer Issues – Tajikistan and Kyrgyzstan. AILA members representing nationals of Tajikistan are receiving notices explaining that their cases have been transferred to Bishkek, Kyrgyzstan with new case numbers reflecting the change. However, the Bishkek Embassy’s website indicates that they do not process immigrant visas. Additionally, the Dushanbe Embassy’s website still states that all immigrant visas are processed via Almaty, Kazakhstan. Has there been a change in processing for Tajik cases? Will all Tajik cases be processed through Bishkek or will processing in Almaty continue for some cases? RESPONSE: The U.S. Embassy in Bishkek will begin accepting IV cases from NVC in November 2016. With this launch in mind, NVC is beginning to assign Kyrgyz applicants to process in Bishkek, instead of Almaty. Bishkek’s website is currently under construction to add IV processing information, and interview instructions for Bishkek will soon be available on travel.state.gov. Tajikistani applicants, however, will continue to process in Almaty, Kazakhstan. If you’ve received notification indicating that a Tajikistani’s case was transferred to Bishkek, we’d appreciate receiving case specific information via [email protected] so we can investigate further.

7. Affidavit of Support. An affidavit of support sponsor is permitted to supplement their income with proof of assets to make up any shortfall of income to meet the affidavit of support requirements. Despite providing proof of value, equity, and ownership of assets, NVC seems to regularly deem the affidavit of support inadequate. Does this information need to be provided to NVC, or can it instead be brought to the interview? RESPONSE: NVC will assess affidavits of support based on the income information provided by the petitioner. As a matter of procedure, NVC staff will not consider proof of assets that were submitted to supplement petitioner income. In any situation where the petitioner’s income does not overcome poverty guidelines, NVC will send an assessment letter suggesting that the applicant bring a joint-sponsor document or other proof of income/assets to the IV appointment. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor documents, as well as proof of petitioner assets to the immigrant visa interview, where the consular officer will make the final determination regarding the affidavit of support and whether the supporting income and asset documents overcome poverty guidelines.

8. Modernized Immigrant Visa (MIV) Process

a. We understand that the Consular Electronic Application Center (CEAC) has been undergoing significant program developments. Please provide an update on the implementation of the Modernized Immigrant Visa (MIV) application process at the initial six pilot posts. RESPONSE: The Bureau of Consular Affairs is planning a spring 2017 release of a new CEAC module for IV applicants on a pilot basis. This module will feature:  Online submission of financial and civil documents;  The ability to add or remove derivative applicants online;  The ability to change derivatives from accompanying to follow-to-join online; Page 4  NVC feedback and status updates provided electronically; and  Online case follow-ups to avoid entering termination status – you no longer need to call or email us once per year, you can simply log into CEAC to prevent your case from entering termination. We will pilot this new module with six embassies and consulates (Montreal, Rio de Janeiro, Buenos Aires, Frankfurt, Sydney, and Hong Kong). b. We also understand that the second phase of the MIV was scheduled to take place in mid- 2016 at six additional posts with lower Internet penetration and where applicants have greater reliance on third-party assistance in order to evaluate the robustness of the CEAC system and its ability to respond to a variety of situations. Please provide an update on the results, to date, of this second phase. RESPONSE: In September 2016, we added eight posts to our electronic processing pilot: Addis Ababa, Baghdad, Guatemala City, Kiev, Monrovia, Phnom Penh, Tegucigalpa, and Tashkent. Applicants processing at these embassies now have the option to e-mail their documents to the [email protected] mailbox rather than mailing hard copies to NVC. We scheduled interviews for the first round of electronic cases at these posts in November. If you have clients from one of these posts, please encourage them to join email processing. Customer tip: Applicants who submit documents via email should not also mail them; that can delay case review. c. What is the current target date for worldwide deployment of MIV processing? RESPONSE: It is too early to give a definitive date for worldwide deployment at this time. We hope to be able to answer this question after our planned pilot in spring 2017.

9. NVC Operations

a. We understand that the NVC is transitioning from a paper warehouse to a customer service center and as part of this process; teams of regional experts have been created to identify and respond to obstacles confronting visa applicants. Please provide an update on the activities of regional teams. Are there any plans to extend this model to the non-immigrant visa application process? RESPONSE: NVC Post Liaisons act as the intermediary between consular sections worldwide and NVC’s regional processing teams. They communicate trends, guidance, interview capacity, and other processing updates between the regional teams and the posts served. Post Liaisons have a thorough understanding of IV processing at posts overseas. They also work with posts to ensure public information is up-to-date and understandable. We are always looking at the service we provide and considering ways to improve customer service. Thank you for the suggestion. b. We understand that NVC added a consular officer to its staff in the fall of 2015 in order to facilitate the relationship between NVC and overseas posts. Has this addition yielded the expected results? RESPONSE: NVC added a consular officer position to its staff in the fall of 2015 to Page 5 serve as the Government Technical Monitor (GTM) of its Case Processing and Document Review units. In addition to providing oversight and IV expertise from the field, the consular officer oversees the new Post Liaison program, described above. c. What is the role of the subject matter expert assigned to the customer service division? RESPONSE: NVC added a consular officer position to its staff in summer 2015 to serve as Government Technical Monitor (GTM) of its Telephone Inquiry and Written Correspondence units. In addition to providing oversight and IV expertise from the field, the consular officer oversees the Special Immigrant Visa (SIV) program and monitors compliance with Personally Identifiable Information (PII) regulations and Freedom of Information Act (FOIA) requests. d. Please confirm the current timeframe for the following: i. How long it takes to receive a file from USCIS after approval of an immigrant petition; RESPONSE: It can take up to six weeks to receive a case from USCIS. ii. How long it takes to enter data in the NVC system once a file is received from USCIS; RESPONSE: As of October 28, 2016, it takes seven business days. iii. How long an applicant should wait after approval of a petition by USCIS before inquiring about the status of the application with the NVC; and RESPONSE: We recommend waiting up to six weeks after receiving notice of petition approval before inquiring with NVC. iv. How long it takes for an applicant or attorney to receive a response from [email protected]; or [email protected]. RESPONSE: As of October 28, 2016, it takes five business days to respond to emails submitted to the [email protected] mailbox and five business days to respond to inquiries sent to the [email protected] mailbox. Please keep in mind that processing timeframes and inquiry response times change weekly based on the quantity of questions and casework received at NVC.

10. Inquiring on Pending Cases

a. At our last meeting, NVC provided the following process for attorneys to inquire about cases pending with NVC. When inquiring about a case, send an e-mail to [email protected]. If you do not receive a response within 15 days, send a second follow-up e-mail to [email protected]. If you still don’t receive a response after 15 days, send a third e-mail to [email protected], with “Attention PI Supervisor” in the subject line. You should receive a response from the PI Supervisor within 5 to 7 business days. Page 6 Are there any changes to this escalation protocol? RESPONSE: Given that we are now responding to attorney e-mails well within one week, we have revised the guidance as follows: When inquiring about a case, send an e-mail to [email protected]. If you do not receive a response within eight days, send a second follow-up e-mail to [email protected]. If you still don’t receive a response after eight days, send a third e-mail to [email protected] with “Attention PI Supervisor” in the subject line. You should receive a response from the PI Supervisor within five to seven business days. b. We understand that NVC receives telephone inquiries regarding processes and procedures relating to the nonimmigrant visa application process. This role is confined to providing general application information, directing applicants to the appropriate consulate web page, identifying the status of an application at a post, and informing applicants of a visa refusal. Are there any plans to expand the role of NVC in the nonimmigrant visa application process? RESPONSE: There are no plans to expand our role at this time.

11. DS-260. Are any planned updates for Form DS-260?

RESPONSE: There are no planned updates for the Form DS-260 at this time.

12. Attorney as Agent.

If an attorney is designated as an agent, is it also necessary to have a Form G-28 on file in order to be able to communicate with NVC on behalf of the visa applicant? RESPONSE: As an attorney, you can either file a Form G-28 or submit a signed statement on your law office letterhead that indicates you are now representing the beneficiary. We accept both of these items as proof that there is an attorney-client relationship, and either can be submitted to [email protected].

13. Revoked I-130s

After Death of USC Spouse Petitioner. AILA has recently received reports of certain I-130 petitions being revoked erroneously after the death of a United States Citizen (USC) petitioner (examples available upon request). Pursuant to 8 CFR 204.2(i)(1)(iv), a visa petition previously approved to classify the beneficiary as an immediate relative spouse of a USC should automatically convert to an approved Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. Examples are submitted for your review at Appendix A. As a result, I-130 petitions that fall into this category should not be revoked. Although these cases are being revoked by USCIS, they are being sent for revocation to USCIS by the NVC. Is the NVC aware of this issue? If a case is erroneously sent for revocation and an attorney/beneficiary receives notice of such a transfer and/or revocation, what is the process to resolve this error and ensure that the case is properly converted to an I-360 as noted in 9 FAM 502.1-2(C)(c.)(2)? RESPONSE: Thank you for your feedback. You are correct that many IR1/CR1 (and in some circumstances IR2/CR2) cases are eligible for automatic conversion to I-360. Page 7 NVC has an existing procedure in place that converts these petitions upon notification of the death of the petitioner. Thank you for providing examples of cases where AILA believes a petition should have been automatically converted. We note that 8 CFR 204.2 (i)(1)(iv) and 8 CFR 204.2(b)(1) set requirements for automatic conversion. Depending on the facts of the case, if there is a question about whether these requirements were met, the appropriate course of action may be to send a petition to USCIS for review and possible revocation. It is especially difficult for us to determine that a petition was returned to USCIS in error where USCIS in fact revoked the petition. We understand from previous discussions that AILA also intended to raise this issue with USCIS. We look forward to learning USCIS’ response and with this clarity will work to ensure interagency consistency. With respect to the specific examples, we will work with the Visa Office and respond directly to the inquiring attorney. If you encounter similar cases, please send an email with case specifics to [email protected] with “Attention PI Supervisor” in the subject line and we will review the issue for you. 

Please see here or here.

Post-Election DACA update and resources provided by ILRC.

November 10, 2016
 

• President-elect Donald Trump pledged to end DACA immigration program when he becomes President. He will be inaugurated on January 20, 2017. Until that time, DACA will remain in place and USCIS will continue to process both initial and renewal DACA requests. 

The risk. Those who receive or apply for DACA will not necessarily be targeted for deportation. Administrative programs like this have never been used for wholesale deportation in the past. It would be extremely costly for the government to try to deport all 700K+ DACA recipients. However, we do not really know what to expect. Anything is possible.
 
Initial DACA applications. For those who have not yet applied for DACA, the processing of those applications is taking long enough now that they would likely not be adjudicated until after January 2017, and it is possible the DACA program will not exist by then. Therefore, at this point potential applicants’ efforts to assemble an initial DACA application and pay the filing fees (which go up in December 2016) may result in no benefit and expose them to DHS.
 
DACA renewals. It is unknown whether the next Administration will terminate existing DACA grants or instead not allow DACA recipients to renew. Those who have already received DACA are known by the government. Therefore, renewing DACA does not carry a new risk. In fact, renewing DACA may mean a DACA recipient can have a work permit until it expires one to two years into the next Administration. One risk, however, is again that the renewal might not be adjudicated before Trump becomes President, and the effort and money to renew will be for nothing. People who file to renew soon may be successful, as DACA renewals are currently being processed in 8 weeks with USCIS' upgraded system. The cost may be offset by loans and other funding available through Mission Asset Fund, the Mexican Consulate, some DACA collaboratives and/or other programs.
 
Advance parole. At this point, advance parole may be a little bit harder to get, because processing time is three months or more, which would put approvals (even if filed today) and subsequent travel in February 2017. Emergency advance parole requests, however, may still be useful in helping people travel and subsequently adjust status under 245(a). 
 

•  What the Future Holds

 

• Based on Trump’s campaign rhetoric and the new composition of Congress, we do not expect a comprehensive immigration reform that includes legalization to be introduced in the coming years.

 

• We do not expect expanded DACA or DAPA to make it through the courts.

 
It is possible that some states will try to introduce additional state legislation creating benefits and some protections for immigrants like California has done. Some other states may introduce legislation that increases immigration enforcement at the local level.
 

• What Immigrants Can Do Now

 
People should go to a legal services provider to be screened for any possible immigration options other than DACA for which they may already be eligible.
 
The ILRC has a comprehensive client intake form to assist practitioners in screening. It can be found online at https://www.ilrc.org/screening-immigration-relief-client-intake-form-and-notes.
 
The Immigration Advocates Network maintains a national directory of more than 950 free or low-cost nonprofit immigration legal services providers in all 50 states. It can be found online at https://www.immigrationlawhelp.org.
 
Community members should be warned of fraudulent service provider schemes and educated about how to seek competent immigration help. The ILRC has created community education flyers about this available in English and Spanish available online at https://www.ilrc.org/anti-fraud-flyers.
 

• People should know their rights when in contact with an immigration agency.

 
The ILRC has created Red Cards to help both citizens and noncitizens defend themselves against constitutional violations during ICE raids. These cards provide citizens and noncitizens with information about how to assert their constitution rights and an explanation for ICE agents that the individuals are indeed asserting their constitutional rights. Go https://www.ilrc.org/red-cards for more information and contact us at[email protected] to order.
 

• People should continue to avoid negative interaction with law enforcement. Something like a DUI or conviction related to drugs can have irreversible negative immigration consequences.

 

• If filing to renew DACA, applicants need to be aware that the filing fee increases to $495 on December 23, 2016.

 
Information provided by ILRC.
 

A new federal lawsuit filed in California advances efforts to reinstate the Obama administration’s immigration relief initiatives, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA (Deferred Action for Childhood Arrivals).

The lawsuit filed in the U.S. District Court for the Northern District of California by Rocío Sanchez Ponce, a DACA recipient, is the third lawsuit to challenge the reach of an injunction in U.S. v. Texas.

It follows similar lawsuits by Martín Batalla Vidal in the Eastern District of New York and by José Lopez in the Northern District of Illinois.

The three lawsuits seek to fix a wrongdoing suffered by thousands of DACA recipients who are not party to the Texas case, and they could open up a new pathway for the implementation of DAPA and expanded DACA outside of Texas, providing relief to millions of families.

Sanchez Ponce, 23, is a longtime resident of Hayward, Calif., who came to the U.S. from Mexico when she was six years old. She is represented by the National Immigration Law Center (NILC).

In February 2015, Sanchez Ponce received a three-year work permit from U.S. Citizenship and Immigration Services under newly issued rules for DACA. That same month, Judge Andrew S. Hanen, of the federal district court in South Texas, issued an injunction in U.S. v. Texas that blocked DAPA and the expansion of DACA nationwide, based solely on claims of alleged costs to Texas. The federal government relied on that injunction to revoke three-year work permits that had been issued to thousands of DACA recipients across the country, including to Sanchez Ponce and the plaintiffs in the New York and Illinois lawsuits.

Sanchez Ponce seeks reinstatement of her three-year work permit because its revocation on the basis of the overbroad injunction was unlawful. Furthermore, by challenging the scope of the Texas injunction, the lawsuit could lead to the reinstatement of DAPA and expanded DACA for millions of families in states that are not part of the Texas lawsuit.

Announced in 2012, DACA allows some young undocumented immigrants such as Sanchez Ponce, who came to the U.S. as children, to live and work in the country temporarily if they meet certain eligibility requirements.

In November 2014, the Obama administration sought to build on the success of that initiative by expanding eligibility requirements to include more immigrant youth and by creating the DAPA program, which would similarly allow some undocumented parents of U.S. citizen and lawful permanent resident children to live and work in the U.S. temporarily. At the same time, the Department of Homeland Security announced that new and renewing DACA applicants would be approved for three- rather than two-year periods. U.S. Citizenship and Immigration Services began issuing three-year work permits that same month.

In December 2014, Texas and 25 other states sued to stop the implementation of DAPA and expansion of DACA. In February 2015, Judge Hanen issued a nationwide injunction blocking both initiatives. The case made its way to the U.S. Supreme Court, which last refused to rehear the case after deadlocking and issuing no decision in June 2016. This federal injunction still stands.

The complaint filed today is available at www.nilc.org/wp-content/uploads/2016/11/Sanchez-Ponce-v-Baran-complaint-2016-11-03.pdf.

​

November 2, 2016

PA-2016-07
Policy Alert

SUBJECT: Definition of Certain Classes of Medical Conditions and Other Updates Relating to Health-Related Grounds of Inadmissibility

Purpose:

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding health-related grounds of inadmissibility in accordance with the U.S. Department of Health and Human Services (HHS) rulemaking updating Title 42 of the Code of Federal Regulations, part 34 (42 CFR 34).

Background:

On January 26, 2016, HHS published the final rule updating HHS’s regulation. USCIS is updating its guidance in Volume 8, Part B of the Policy Manual to reflect the changes to the HHS regulation. The HHS final rule was effective on March 28, 2016. Accordingly, the updates made to the USCIS Policy Manual are effective as of March 28, 2016. The guidance contained in the Policy Manual is controlling and supersedes any prior guidance.

Policy Highlights:

Updates the definition of a Class A condition, to include failure to present documentation of having received vaccinations against vaccine preventable diseases.
 Updates the definition of a Class B condition to “health conditions, diseases, or disability serious in degree or permanent in nature.”
 Updates the definition of physical and mental disorders with associated harmful behavior and the definition of drug abuse and drug addiction.
 Removes 3 medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for immigration benefits inadmissible on health-related grounds of inadmissibility.

Citation Volume 8: Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

The USCIS Policy Manual has been updated to provide guidance regarding health-related grounds of inadmissibility in accordance with the U.S. Department of Health and Human Services rulemaking updating Title 42 of the Code of Federal Regulations, part 34 (42 CFR 34).  

--------------------------------------------
CHAPTER 7:

A. Physical or Mental Disorders with Associated Harmful Behavior​ [1]​Applicants who have physical or mental disorders and harmful behavior associated with those disorders are inadmissible.​ [2] The inadmissibility ground is divided into two subcategories:​
​•Current physical or mental disorders, with associated harmful behavior. ​
​
•Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior. ​
​There must be both a physical or mental disorder and harmful behavior to make an applicant inadmissible based on this ground. Neither ​harmful behavior nor a physical or ​mental disorder alone renders an applicant inadmissible on this ground. Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.​
​
A physical disorder is a currently accepted medical diagnosis as defined by the current edition of the Manual of International Classification of Diseases, Injuries, and Causes of Death published by the World Health Organization or by another authoritative source as determined by the Director.​ [3] Officers should consult the Technical Instructions for additional information, if needed.​
​A mental disorder is a currently accepted psychiatric diagnosis, as defined by the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or by another authoritative source as determined by the Director.​ [4] Officers should consult the Technical Instructions for additional information, if needed.​
​Under the Technical Instructions, a diagnosis of substance abuse/addiction for a substance that ​is not listed​ in Section 202 of the Controlled Substance​s​ Act (with current associated harmful behavior or a history of associated harmful behavior judged likely to recur) is classified as a mental disorder.​ [5]
​Under prior Technical Instructions and the July 20, 2010 or older versions of the form, these conditions were summarized under the drug abuse/addiction part of the form. An officer, however, should not find an applicant inadmissible for “drug abuse/addiction” if a non-controlled substance is involved.​
​
B. Relevance of Alcohol-Related Driving Arrests or Convictions​​
1. Alcohol Use and Driving​
​Alcohol ​is not listed​ in Section 202 of the Controlled Substances Act.​ [6] Therefore, alcohol use disorders ​are treated​ as a physical or mental disorder for purposes of determining inadmissibility. As a result, an applicant with an alcohol use disorder will not be deemed inadmissible unless there is current associated harmful behavior or past associated harmful behavior likely to recur. The harmful behavior must be such that it poses, has posed, or is likely to pose a threat to the property, safety, or welfare of the applicant or others. ​
​In the course of adjudicating benefit applications, officers frequently encounter criminal histories that include arrests and/or convictions for alcohol-related driving incidents, such as DUI (driving under the influence) and DWI (driving while intoxicated). These histories may or may not rise to the level of a criminal ground of inadmissibility.​ [7] A record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute evidence of a health-related inadmissibility as a physical or mental disorder with associated harmful behavior.​
​Operating a motor vehicle under the influence of alcohol is clearly an associated harmful behavior that poses a threat to the property, safety, or welfare of the applicant or others. Where a civil surgeon’s mental status evaluation diagnoses the presence of an alcohol use disorder (abuse or dependence), and where there is evidence of harmful behavior associated with the disorder, a Class A medical condition should be certified on ​Form I-693​. ​
2. Re-Examination​s​ ​

​Requesting ​Re-Examinations​
​Some applicants may fail to report, or may underreport, alcohol-related driving incidents in response to the civil surgeon’s queries. Where these incidents resulted in an arrest, they may be subsequently revealed in the criminal history record resulting from a routine fingerprint check. Consequently, a criminal record printout revealing a significant history of alcohol-related driving arrests may conflict with the medical examination report that indicates no alcohol-related driving incidents were reported to or evaluated by the civil surgeon.​
​In such an instance, an officer may require the applicant to be re-examined. The re-examination would be limited to a mental status​ ​evaluation specifically considering the record of alcohol-related driving incidents. On the ​Request for Evidence (​RFE​)​, officers should use the following language: “Please return to the civil surgeon for purposes of conducting a mental status evaluation specifically considering the record of alcohol-related driving incidents.”​
​Upon re-examination, the civil surgeon may refer the applicant for further evaluation to a psychiatrist or to a specialist in substance-abuse disorders as provided for under the Technical Instructions. After such referral, the civil surgeon will determine whether a Class A medical condition exists and amend the ​Form I-693​ accordingly. The determination of a Class A condition is wholly dependent on the medical diagnosis of a designated civil surgeon.​ ​
​
Re-Examination for​ Significant Criminal Record of Alcohol-Related Driving Incidents​
​Only applicants with a significant criminal record of alcohol-related driving incidents that were not considered by the civil surgeon during the original medical examination should be referred for re-examination. ​
​The actual criminal charges for alcohol-related driving incidents vary among the different states. A significant criminal record of alcohol-related driving incidents includes:​
​•One or more arrests/convictions for alcohol-related driving incidents (DUI/DWI) while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident(s).​
​•One or more arrests/convictions for alcohol-related driving incidents where personal injury or death resulted from the incident(s).​
​•One or more convictions for alcohol-related driving incidents where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.​
​•One arrest/conviction for alcohol-related driving incidents within the preceding ​5​ years.​ [8]
​​•Two or more arrests/convictions for alcohol-related driving incidents within the preceding ​10​ years.​ [9]
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If the officer finds that the criminal record appears to contradict the civil surgeon’s finding in the medical examination report, then the officer should request a re-examination.​
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Example:​ An applicant’s criminal record shows that she was convicted for DWI-related vehicular manslaughter. However, the medical examination report reflects that no Class A or B physical or mental disorder was found. In this case, the officer should request a re-examination because the medical examination report finding should have reflected that the applicant has a history relating to an alcohol-related driving incident that could indicate a physical or mental disorder with associated harmful behavior. ​
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3. Determination Based on Re-Examination​​

Upon completion of the re-examination, the officer should determine whether the applicant is inadmissible. If the civil surgeon annotated a Class A condition, the applicant is inadmissible. If no Class A condition is certified by the civil surgeon, the officer may not determine that the applicant is inadmissible. In exceptional cases, the officer may seek review of the civil surgeon’s determination from CDC. ​
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If the applicant is inadmissible, he or she may file an application for waiver of inadmissibility.​ [10] ​
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C. Relevance of Other Evidence​​
The guidance relating to alcohol-related driving arrests or convictions described above applies to any similar scenario where the record of proceeding contains evidence that may indicate inadmissibility due to a mental or physical disorder with associated harmful behavior that was not considered by the civil surgeon in the original medical examination. Such evidence includes, but is not limited to: ​
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•A prior finding of inadmissibility due to a mental disorder. ​
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•A history of institutionalization for a mental disorder. ​
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•A criminal history other than ​drunk​ driving arrests/convictions, such as assaults and domestic violence, in which alcohol or a psychoactive substance was a contributing factor. ​
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•Any other evidence that suggests an alcohol problem.​
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•Other criminal arrests where there is a reasonable possibility of a mental disorder as a contributing factor. ​
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Accordingly, where the record of proceeding available to the officer contains evidence suggestive of a mental disorder, and the ​Form I-693​ medical report does not reflect that the evidence was considered by the civil surgeon, the applicant must be required to undergo a mental status re-examination by a civil surgeon specifically addressing the adverse evidence that may not have initially been revealed to the civil surgeon.​
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CHAPTER 8:

A. Drug Abuse or Drug Addiction​​Applicants who ​are found​ to be drug abusers or addicts are inadmissible.​ [1] 

Drug abuse and drug addiction ​are current substance-use disorders or substance-induced disorders of a controlled substance listed in Section 202 of the Controlled Substance​s​ Act, as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association or by another authoritative source as determined by the Director.​ [2] ​
​In 2010, ​the Centers for Disease Control and Prevention (​CDC​)​ changed the Technical Instructions on how a civil surgeon determines whether an applicant is a drug abuser or drug addict.​ [3] The civil surgeon must now make this determination according to the DSM as specified in the Technical Instructions.​ [4] ​
​If the applicant is classified as a drug abuser or addict, the applicant can apply again for an immigration benefit if his or her drug abuse or addiction is in remission. Remission is now defined by DSM criteria, and no longer by a set timeframe as it was under previous Technical Instructions.​ [5] In order for an applicant’s drug abuse or addiction to be classified as in remission, the applicant must return to a civil surgeon for a new assessment. ​
​If the officer has reason to question the completeness or accuracy of the medical examination report, the officer should ask CDC to review the ​medical report before sending a Request for Evidence​ ​(​RFE​)​.​
​Most applicants who are found to be drug abusers or addicts are ineligible for a waiver; the availability depends, however, on the immigration benefit the ​applicant seeks.​ [6] ​
B. Part of ​Form I-693​ Addressing Drug Abuse or Drug Addiction​

​The civil surgeon must check the appropriate findings box on the medical examination report. The civil surgeon should also either annotate the findings in the remarks section or attach a report, if the space provided is not sufficient. However, the officer should not RFE simply because the civil surgeon has omitted the remarks or failed to attach a report. ​
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CHAPTER 11: INADMISSIBILITY DETERMINATION

A. Civil Surgeon or Panel Physician​ ​Documentation​​
If a “Class A condition” is noted on the medical form, it is conclusive evidence that the applicant is inadmissible. The Class A annotation may also indicate that an applicant could be inadmissible on other grounds of inadmissibility. For example, “harmful behavior” associated with a physical or mental disorder, or illegal drug use, may have resulted in criminal convictions that make an applicant inadmissible under ​INA 212(a)(2)​. However, a criminal conviction should be supported by conviction records or similar evidence, and not just the medical examination report.​ [1] ​
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If a civil surgeon or panel physician only annotates a “Class B condition” (per HHS regulations), the applicant is ​never​ inadmissible on health-related grounds. The officer should remember that if the civil surgeon or panel physician indicates on the ​Form I-693​ that a former Class A condition is now a Class B condition, the applicant is no longer inadmissible. However, a Class B condition may indicate that the applicant could be inadmissible on other grounds because of the condition, such as public charge.​ [2] ​
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The officer may encounter medical documentation that is not fully completed. In this c​ase, the officer should issue a Request for Evidence​ ​(​RFE​)​. If the physician fails to properly complete the form in response to the RFE, the applicant has not established that he or she is clearly admissible to the United States.​ [3] ​
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B. Applicant’s Declaration​​
If the applicant indicates that he or she may be inadmissible based on a medical reason, the officer must order a medical examination of the applicant. Based on the results of that medical exam, the officer should ascertain whether the applicant actually has a Class A, Class B, or no condition at all that is relevant to the applicant’s admissibility. The applicant should not be found inadmissible unless the medical examination confirms the presence of a Class A medical condition.​
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C. Other Information​ ​​
Even if the civil surgeon or panel physician did not annotate a Class A or B condition in the medical documentation, or if the applicant was not required to undergo a medical examination, the officer may order or reorder an immigration medical examination at any time if he or she has concerns as to an applicant’s inadmissibility on health-related grounds. ​
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The concern should be based on information in the A-file, information that is revealed by the applicant or another applicant during an interview, or information revealed during a background investigation. ​
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D. Other Grounds ​of ​Inadmissibility​​
1. General​ ​Considerations​​
Where relevant, the information contained in the medical examination can be used to determine whether other grounds of inadmissibility may apply. For instance, health is one factor to consider when determining if someone is inadmissible on public charge grounds. This factor must, however, be considered in light of all other factors specified by law​ [4] and in standard public charge guidance.​ [5] ​
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2. Criminal ​Grounds​​
An applicant may be inadmissible on criminal grounds if he or she has admitted to committing certain controlled substance violations.​ [6] ​An applicant may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation. ​
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USCIS does not consider this acknowledgement, in and of itself, a valid admission that would make an applicant inadmissible on criminal grounds.​ [7]However such an acknowledgment of drug use may open a line of questioning to determine c​riminal inadmissibility. USCIS o​fficers should find that an applicant has made a valid “admission” of a crime only when the admission is made in accordance with the requirements outlined by the Bo​ard of Immigration Appeals​.​[8] ​
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E. Privacy Concerns​
​An officer should take great care to regard the privacy of the applicant. The officer should generally not discuss the applicant’s medical issues with applicants other than the applicant, his or her counsel, immigration officers, or other government officials​ [9] who clearly have a need to know the information.​

​​The officer should not directly contact a civil surgeon to discuss an applicant’s inadmissibility or medical issues. If the officer has any concerns that cannot be resolved by reviewing the evidence in the record, the officer should issue an RFE.​
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