Are you applying for an immigrant visa with a US consul, or for adjustment of status to a lawful permanent resident with the United States Citizenship and Immigration Services (USCIS) or before the immigration judge?
To be admitted as an immigrant, you must show that you do not have any health-related grounds of inadmissibility.
Under Section 212(a)(1) of the Immigration and Nationality Act, in connection with the regulations of the Secretary of Health and Human Services (HHS), an alien who is determined to have behavior associated with a mental disorder that may posing, or has posed, a threat to the property, safety, or welfare of the alien or others, is impermissible.
And under interpretations prescribed by the Secretary of HHS, alcohol abuse/dependence resulting in drink-driving may serve as the basis for determining that an alien has a mental disorder associated with harmful behavior, which in turn time may be the basis for a finding. of inadmissibility under Section 212(a)(1)(A)(iii) of the Act.
USCIS Memo to Directors:
William R. Yates, USCIS Associate Director of Operations, issued on January 16, 2004 the Memorandum Regarding Request for Medical Reexamination: Aliens Involved in Significant Alcohol-Related Driving Incidents and Similar Scenarios. It was aimed at Regional Directors, Directors of Service Centers and District Directors.
The aforementioned Memorandum provides policy guidance for determining inadmissibility on the health-related grounds of Section 212(a)(1) of the Act, in cases where an applicant for immigration benefits has a significant history of alcohol-related driving incidents.
Reiterates the authority of USCIS field offices to require that certain applicants for immigration benefits with a history of alcohol-related driving incidents be re-examined by a civil surgeon to ensure they are not inadmissible on health-related grounds.
It cites data provided by the Centers for Disease Control and Prevention (CDC) that drunk driving has caused more than 17,000 deaths a year, more than 500,000 injuries, and more than $51 billion in property damage. .
Criminal record of alcohol-related driving:
In the course of adjudicating applications for immigration benefits, USCIS officers require or find criminal records from the FBI or State Department of Justice indicating arrests and/or convictions for alcohol-related driving incidents, such as driving under the influence (DUI), punishable under Section 23152 of the California Vehicle Code.
According to the aforementioned Memorandum, the criminal record may or may not rise to the level of a criminal ground of inadmissibility under section 212(a)(2) of the Act. In fact, driving under the influence of alcohol is not a crime that involves moral turpitude, pursuant to section 212(a)(2)(i)(I) of the Act.
But the same Memorandum provides that a record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute prima facie evidence of health-related inadmissibility under section 212(a)(1)(A)(iii). of the Law, such as a physical or mental disorder with associated harmful behaviour.
The determination that there is a health-related ground of inadmissibility is made by the USCIS adjudication officer, based on the findings of a civil surgeon (licensed physician) who performed the alien’s medical examination.
Exams performed by civilian surgeons are governed by the Technical Instructions for Medical Examinations of Aliens in the United States, published by the Centers for Disease Control and Prevention (CDC).
Civil surgeon consultations include:
(1) certainty of the alien’s state of mind;
(2) detection of the presence of any mental disorder; and
(3) use of alcohol and other psychoactive substances.
If a civil surgeon makes the diagnosis of alcohol abuse or dependence (each of which is a medically classifiable mental disorder) and there is evidence of harmful behavior associated with the disorder (such as driving under the influence), a Class A medical condition shall be certified by the examining civil surgeon on the Report of Medical Examination of Alien Seeking Adjustment of Status, Form I-693.
And based on said certified Class A status on the Form I-693 medical report, the USCIS officer will determine that the alien is inadmissible and therefore ineligible for adjustment of status to lawful permanent resident.
Medical Reexamination Procedure:
If the Form I-693 medical report from the civil surgeon does not establish an alcohol-related driving incident, because the alien did not report it; and subsequently, a criminal record print from a fingerprint check reveals a significant history of alcohol-related driving arrests, the USCIS officer will require the alien applicant to be reexamined.
The medical re-examination will be limited to a mental status evaluation, specifically considering the history of alcohol-related driving incidents.
The civilian physician may, in turn, refer the foreign applicant to a psychiatrist or substance abuse disorder specialist for further evaluation, as provided in the CDC Technical Instructions.
If the designated civil surgeon determines that a Class A medical condition (alcohol abuse or alcohol dependence as a mental disorder) exists, he or she must amend the Form I-693 medical report accordingly. And the USCIS officer will determine that the alien is inadmissible.
However, the inadmissible alien may file an application for a waiver of inadmissibility for health reasons on Form I-601 under Section 212(g)(3) of the Act, which authorizes USCIS to establish terms, conditions, and checks, including the posting of a bond, on the waiver, to allow adjustment of status to lawful permanent resident.
Guideline for medical reexamination:
The aforementioned Memorandum highlights that “only applicants with a significant criminal history of alcohol-related driving incidents that were not considered by the civil surgeon during the original medical examination should be referred for reexamination.”
And as a guide to policy, a significant criminal record of alcohol-related driving incidents includes:
1) one or more arrests or convictions for alcohol-related driving (Driving Under the Influence/Driving While Intoxicated) while the driver’s license was suspended, revoked or restricted at the time of the incident(s);
2) one or more arrests or convictions for driving under the influence, where the incident(s) resulted in personal injury or death;
3) one or more convictions for driving under the influence, when the conviction was a felony in the jurisdiction where the incident occurred, or where a sentence of imprisonment was imposed;
4) two or more arrests or convictions for driving under the influence, within the previous two years; gold
5) Three or more DUI arrests or convictions, where an arrest or conviction occurred within the previous two years.
The moral of this article is: Don’t drink and drive!