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Are you applying for an immigrant visa with a US Consul, or adjustment of status to lawful permanent resident with the United States Citizenship and Immigration Services (USCIS) or before the Immigration Judge?

In order to be admitted as an immigrant, you have to establish that you do not have any health-related ground for 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 determined to have a mental disorder associated behavior that may pose, or has posed , a threat to the property, safety, or welfare of the alien or others, is inadmissible.

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

USCIS Memorandum To Directors:

William R. Yates, Associate Director for Operations of the USCIS, issued on January 16, 2004 the Memorandum, on Requesting Medical Re-examination: Aliens Involved in Significant Alcohol-Related Driving Incidents and Similar Scenarios. It was directed to Regional Directors, Service Center Directors and District Directors.

The aforesaid 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 benefit has a significant record of alcohol-related driving incidents.

It reiterates the authority of the 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.

It cites data provided by the centers for Disease Control and Prevention (CDC) that alcohol-impaired driving has resulted in over 17,000 deaths annually, over 500,000 injuries, and over $ 51 billion in property damages.

Criminal History For Alcohol-related Driving:

In the course of adjudicating immigration benefit applications, USCIS officers require or encounter criminal records from the FBI or State Department of Justice that indicate 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 aforesaid Memorandum, the criminal histories may or may not rise to the level of a criminal ground for inadmissibility under section 212 (a) (2) of the Act. Indeed, driving under the influence of alcohol is not a crime involving moral turpitude, under section 212 (a) (2) (i) (I) of the Act.

But the same Memorandum states that a record of criminal arrests and / or convictions for alcohol-related driving incidents may constitution prima facie evidence of health-related inadmissibility under section 212 (a) (1) (A) (iii) of the Act, as a physical or mental disorder with associated harmful behavior.

The determination that a health-related ground of inadmissibility exists is made by the USCIS adjudication officer, based on the findings of a civil surgeon (authorized physician) who conducted the medical examination of the alien.

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

Queries by the civil surgeon include:

(1) ascertainment of the mental status of the alien;

(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 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), 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 on the basis of such Class A condition certified on the Form I-693 medical report, the USCIS officer shall make a determination that the alien is inadmissible, and therefore, ineligible for adjustment of status to lawful permanent resident.

Medical Re-examination Procedure:

If the civil surgeon's Form I-693 medical report does not state any alcohol-related driving incident, because the alien did not report it; and subsequently, a criminal record printout from a finger print check reveals a significant history of alcohol-related driving arrests, the USCIS officer shall require the alien applicant to be re-examined.

The medical re-examination shall be limited to a mental status evaluation, specifically considering the record of alcohol-related driving incidents.

The civil surgeon may in turn refer the alien applicant to a psychiatrist or a specialist in substance-abuse disorders for further evaluation, as provided for under the CDC's Technical Instructions.

If the designated civil surgeon determines that a Class A medical condition (alcohol abuse or alcohol dependence as mental disorder) exists, he / she shall amend the Form I-693 medical report accordingly. And the USCIS officer shall determine that the alien is inadmissible.

The inadmissible alien may, however, file an application for waiver of inadmissibility due to a health-related ground on Form I-601 under Section 212 (g) (3) of the Act, which authorizes the USCIS to place terms, conditions and controls , including giving a bond, on the waiver, to allow adjustment adjustment of status to lawful permanent resident.

Guideline For Medical Re-examination:

The aforesaid 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 re-examination".

And as a policy guidance, 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 alcohol-related driving, where personal injury or death resulted from the incident (s);

3) one or more conviction for alcohol-related driving, 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 arrests or convictions for alcohol-related driving, within the preceding two years; or

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

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

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Source by Roman Mosqueda, SJD

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