Are you applying for an immigrant visa with a US consul or an adjustment of status to 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 prove that you do not have any health-related grounds of inadmissibility.

Under Section 212 (a) (1) of the Immigration and Nationality Act, in relation to the regulations of the Secretary of Health and Human Services (HHS), an alien who is determined to have a behavior associated with a mental disorder that may pose, or has posed, a threat to the property, safety, or well-being of the alien or others, is inadmissible.

And based on interpretations prescribed by the Secretary of HHS, alcohol abuse / dependence resulting in driving under the influence of alcohol may serve as the basis for the determination that an alien has harmful behavior associated with a mental disorder, which a in turn, it may be a basis for the determination of inadmissibility under Section 212 (a) (1) (A) (iii) of the Act.

Memorandum from USCIS to Directors:

William R. Yates, USCIS Associate Director of Operations, issued the Memorandum on Requesting a New Medical Examination: Aliens Involved in Alcohol-Related Driving Incidents and Similar Scenarios on January 16, 2004. It was aimed at Regional Directors, Service Center Directors and District Directors.

The aforementioned Memorandum provides policy guidance for determining inadmissibility under 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.

It 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 that they are not inadmissible on health-related grounds.

Cites data provided by the Centers for Disease Control and Prevention (CDC) that driving under the influence of alcohol has caused more than 17,000 deaths annually, more than 500,000 injuries and more than $ 51 billion in property damage. .

Criminal record for alcohol-related driving:

In the course of adjudicating applications for immigration benefits, USCIS officers require or find a criminal record from the FBI or the State Department of Justice that indicates arrests and / or convictions for alcohol-related driving incidents, such as driving under influence (DUI), punishable under Section 23152 of the California Vehicle Code.

According to the aforementioned Memorandum, a 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 implies moral depravity, according to section 212 (a) (2) (i) (I) of the law.

But the same Memorandum states 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, as a physical or mental disorder with associated harmful behavior.

The determination that there is a health-related ground of inadmissibility is made by the USCIS adjudicating officer, based on the findings of a civil surgeon (licensed physician) who performed the alien’s medical examination.

Examinations performed by civil surgeons are governed by the Technical Instructions for Medical Examinations of Foreigners in the United States, published by the Centers for Disease Control and Prevention (CDC).

Civil surgeon consultations include:

(1) determination of the foreigner’s mental state;

(2) detection of the presence of a mental disorder; Y

(3) use of alcohol and other psychoactive substances.

If a civil surgeon makes the diagnosis of alcohol abuse or alcohol 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 of alcohol), a Class A physician The condition must be certified by the examining civil surgeon in the Report of Medical Examination of Alien Seeking Adjustment of Status, Form I-693.

And on the basis of such certified Class A status in the Form I-693 medical report, the USCIS officer will determine that the alien is inadmissible and therefore not eligible for adjustment of status to lawful permanent resident.

Medical re-examination procedure:

If the medical report of the civil surgeon’s form I-693 does not indicate any alcohol-related driving incidents, because the alien did not report it; and subsequently, a criminal record printout of a fingerprint check reveals a significant history of alcohol-related driving arrests, the USCIS officer will require the foreign applicant to be re-examined.

The medical re-examination will be limited to an assessment of mental status, specifically considering the history of alcohol-related driving incidents.

The civil surgeon 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, they 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 a request for a waiver of inadmissibility due to a health-related reason on Form I-601 under Section 212 (g) (3) of the Act, which authorizes the USCIS to set terms, conditions and controls. , including the posting of a bond, in the exemption, to allow adjustment of status to lawful permanent resident.

Guideline for medical re-examination:

The aforementioned memorandum stresses that “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 a re-examination.”

And as a policy guide, a significant criminal history of alcohol-related driving incidents includes:

1) one or more alcohol-related driving arrests or convictions (Driving Under the Influence / Drunk Driving) while the driver’s license was suspended, revoked, or restricted at the time of the incident (s);

2) one or more alcohol-related driving arrests or convictions, where personal injury or death resulted from the incident (s);

3) one or more alcohol-related driving convictions, where the conviction was a felony in the jurisdiction where the incident occurred, or where a sentence of incarceration was actually imposed;

4) two or more alcohol-related driving arrests or convictions within the previous two years; gold

5) three or more arrests or convictions for alcohol-related driving, where an arrest or conviction occurred within the previous two years.

The moral of this article is: Don’t drink and drive!