Chapter 4 - Waiver of Physical or Mental Disorder Accompanied by Harmful Behavior
A. General
If the applicant has a physical or mental disorder and behavior associated with the disorder that poses, may pose, or has posed a threat to the property, safety, or welfare of the applicant or others, the applicant must file a waiver to overcome this ground of inadmissibility.[1]
The officer should remember that the physical or mental disorder alone (that is, without associated harmful behavior) or harmful behavior alone (without it being associated with a mental or physical disorder) is not sufficient to find the applicant inadmissible on health-related grounds.
USCIS may grant this discretionary waiver in accordance with such terms, conditions, and controls (if any) that USCIS imposes after consulting with the Secretary of Health and Human Services (HHS).[2] A condition could include the payment of a bond.
A common condition of granting a waiver for an applicant with a physical or mental disorder with associated harmful behavior is that the applicant must agree to see a U.S. health care provider immediately upon admission and make arrangements to receive care and treatment.
The officer must determine whether the applicant is eligible for the waiver, consult with CDC, and determine whether the waiver is warranted as a matter of discretion.
B. Waiver Eligibility and Adjudication
1. Qualifying Relationship
Unlike waivers for communicable diseases of public health significance, waivers for physical or mental disorders with associated harmful behaviors do not require a qualifying relationship.
2. Documentation for CDC’s Review
As noted above, USCIS can only grant this waiver after it has consulted with CDC. However, CDC’s review of the necessary documents does not constitute a waiver approval. CDC may recommend that USCIS should make the waiver subject to appropriate terms, conditions, or controls.
To obtain CDC’s review of a waiver application, the officer should forward the following documents to CDC:
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A cover letter that identifies the USCIS office requesting the review;
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A copy of the waiver application that contains all the required signatures, excluding the supporting documentation that is not medically relevant;[3]
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A copy of the medical examination documentation;[4]
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A copy of the supporting medical report, if provided, detailing the physical or mental disorder that is associated with the harmful behavior and the physician’s recommendation regarding the course and prospects of the treatment;[5] and
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Copies of all other medical reports, laboratory results, and evaluations regardless of whether they are connected to the mental or physical disorder with associated harmful behavior.
3. Sending Documents to CDC
Officers should email the documents to cdcqap@cdc.gov.
To request expedited review, officers should indicate in the subject line of the email to CDC that the request is “Urgent.”
4. CDC Response
Once the documents are received by CDC, the documents are reviewed by CDC’s consultant psychiatrist and CDC will forward a response letter with its recommendation to the requesting USCIS office.
CDC’s usual processing time for review and response to the requesting USCIS office is approximately 4 weeks. If CDC’s response appears delayed, the officer may contact CDC at cdcqap@cdc.gov to obtain a status update.
Upon receipt, the officer should review CDC’s response to determine next steps.
If CDC agrees in its response that the applicant has a Class A condition, CDC will send to the USCIS requesting office CDC 4.422-1 forms, Statements in Support of Application for Waiver of Inadmissibility Under Section 212(a)(1)(A)(iii)(I) or 212(a)(1)(A)(iii)(II) of the Immigration and Nationality Act. The officer must provide the CDC 4.422-1 forms[6] to the applicant (or the applicant’s sponsor) for completion. Once the CDC forms are completed and returned to USCIS, the officer must return the completed forms to CDC for review and endorsement.
Once CDC receives the completed forms, it reviews them to determine whether the applicant has identified an appropriate U.S. health care provider and that the health care provider has completed the forms. If the appropriate U.S. health care provider has been identified, CDC will endorse the forms and return them to the requesting USCIS office.
If CDC’s response indicates that the applicant is “Class B” or “no Class A or B,” it is CDC’s recommendation that the applicant does not require a waiver for the medical condition.
If CDC’s response indicates that additional information is needed in order to complete the review, the officer should issue a Request for Evidence (RFE) for the applicant to provide additional information as specified by CDC. The officer should submit the information obtained through the RFE to CDC. CDC will provide a response to USCIS regarding the additional information. Once CDC indicates that no additional information is needed, the officer may proceed with the adjudication of the waiver.
5. Discretion
As is generally the case for waivers, a waiver for mental or physical conditions with associated harmful behavior requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion.[7]
CDC’s review and endorsement of the identified U.S. health care provider should ordinarily be sufficient to warrant a favorable exercise of discretion for the grant of the waiver. However, if an applicant declares openly his or her unwillingness to commit to treatment, the waiver may be denied as a matter of discretion.[8] If CDC does not favorably endorse the identified U.S. health care provider, the officer should generally not grant the waiver as a matter of discretion.
By statute, it is USCIS’s decision whether to make the waiver subject to terms, conditions or controls. A CDC recommendation concerning terms, conditions, or controls on the granting of the waiver ordinarily has great persuasive weight, but is not binding on USCIS.
USCIS should inform CDC of the decision (approval or denial) of the waiver. The officer does so by completing the CDC response letter, that CDC provided when it returned the endorsed CDC forms to the officer, and emailing cdcqap@cdc.gov.
C. Step-by-Step Checklist
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Step-by-Step Checklist |
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Step 1 |
Gather the necessary documentation for CDC review. |
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Step 2 |
Send documentation to CDC. |
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Step 3 |
Review CDC response. |
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Step 4 |
If applicable, have CDC 4.422.1 forms completed by the applicant and return them for endorsement by CDC. |
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Step 5 |
Analyze whether the waiver should be granted as a matter of discretion. |
Footnotes
[^ 1] See INA 212(a)(1)(A)(iii). See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on the inadmissibility determination based on physical or mental disorders with associated harmful behavior.
[^ 2] See INA 212(g)(3).
[^ 3] For instance, evidence of the family relationship.
[^ 4] Report of Immigration Medical Examination and Vaccination Record (Form I-693); Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053) or the Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), and related worksheets.
[^ 5] The Instructions to Form I-601 detail the contents that should be included in the doctor’s report.
[^ 6] The CDC 4.422-1 forms are used to identify an appropriate U.S. health care provider for the waiver applicant. The forms are generated for the specific waiver applicant by CDC. Part II must be completed by U.S. health care provider and Part III must be completed by the applicant and/or the applicant’s sponsor.
[^ 7] Neither a qualifying relationship nor a finding of hardship is required.
[^ 8] If CDC certifies that a person who obtained an INA 212(g) waiver has failed to comply with any terms, conditions, or controls on the waiver, the person is subject to removal per INA 237(a)(1)(C)(ii). The U.S. health care provider treating the particular condition should provide a summary of the applicant’s initial evaluation to CDC as provided on CDC 4.422-1 form. Generally, no further follow-up is required by the officer.