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Chapter 2: Waiver of Communicable Disease of Public Health Significance 


A. General


The INA authorizes USCIS to exercise discretion in deciding whether to waive inadmissibility based on a communicable disease of public health significance.[1] See INA 212(g)(1) and INA 212(a)(1)(A)(i). INA 212(g)(1) was also amended to include a specific provision for battered immigrants. See section 1505(d) of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464 (October 28, 2000). For more information on the inadmissibility determination based on communicable disease of public health significance, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 6, Communicable Diseases of Public Health Significance. USCIS may grant this waiver in accordance with such terms, conditions,[2] A condition of granting a waiver for an applicant with a communicable disease of public health significance, such as tuberculosis, is that the applicant must agree to see a doctor immediately upon admission and make arrangements to receive private or public medical care for that disease. This requirement is reflected, for example, in the Application for Waiver of Grounds of Inadmissibility (Form I-601), TB Supplement. and controls, if any, that USCIS considers appropriate after consultation with the Secretary of HHS.[3] See INA 212(g)(1)(B). This includes the grant of a waiver based on requiring payment of a bond. 


Once the officer has verified that the applicant is inadmissible because of a communicable disease of public health significance and requires a waiver,[4] Note that an applicant who has been determined to have a Class A condition involving a communicable disease of public health significance may successfully complete treatment. If, after treatment, the civil surgeon or panel physician certifies that the applicant now has a Class B condition, the applicant is no longer inadmissible and does not need a waiver.  the officer must go through the following steps to adjudicate the waiver application:


  • Determine whether the applicant meets the eligibility requirements of the waiver;

     

  • Consult with CDC; and

  • Determine whether the waiver is warranted as a matter of discretion. 


B. Special Note on HIV


As of January 4, 2010, HIV infection is no longer defined as a communicable disease of public health significance according to HHS regulations.[5] See 42 CFR 34.2(b) as amended by 74 FR 56547 (November 2, 2009). Therefore, HIV infection does not make an applicant inadmissible if the immigration benefit is adjudicated on or after January 4, 2010, even if the applicant filed the immigration benefit application before January 4, 2010. Officers should administratively close any HIV waiver application that is filed before January 4, 2010 but adjudicated on or after January 4, 2010.


C. Waiver Eligibility and Adjudication 


1. Qualifying Relationship


To be eligible for the waiver, the applicant must be one of the following:



The officer should verify that the existence of the appropriate relationship is well supported in the applicant’s file. 


2. Documentation for CDC’s Review 


As stated above, USCIS can only grant this waiver after it has consulted with CDC. However, CDC’s review of 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: 



Officers should only send copies, not originals, because CDC will retain the documents.

3. Sending Documents to CDC 


The documents should be mailed to the following address: 


Centers for Disease Control and Prevention (CDC)

Division of Global Migration and Quarantine

1600 Clifton Road, Mailstop E 03

Atlanta, GA 30333

Attention: Quality Assessment Program (QAP)/Waivers

 

If the officer determines that a waiver case warrants expeditious review by CDC, the case may be faxed to (404) 639-4441 or emailed to cdcqap@cdc.gov, Attention: Quality Assessment Program (QAP)/Waivers, Urgent. If sent via email, the documents should be sent in password protected file(s). If sent via fax, the fax cover sheet should request that the case be reviewed expeditiously and that CDC’s response be sent via fax. The officer should also email CDC at cdcqap@cdc.gov, advising that an expedited request was sent via fax. 


4. CDC Response


Once CDC receives and reviews the documents, CDC will forward a response letter with results of the review to the requesting USCIS office. CDC will not return any of the documents provided by USCIS; CDC will only send its recommendation in the response 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 letter to determine next steps.


If CDC’s response letter indicates that CDC was satisfied with the initial documentation and that it does not require additional information, then the officer may proceed to the next step of the waiver adjudication. If CDC was not satisfied with the documentation, it may request additional information or recommend additional conditions to be met before the waiver may be granted. In such a case, the officer should issue an RFE for the applicant to provide the additional information or to demonstrate that he or she made the arrangements required by CDC. 


If CDC requests it, the officer will need to submit the information obtained through the RFE to CDC to determine whether the additional information is sufficient. CDC will provide a response letter to the requesting USCIS office advising if the additional information is sufficient.


Once CDC indicates no additional information is needed, the officer may proceed with the next step of the waiver adjudication.


Note: For Class A TB waivers, CDC’s response letter will provide a specific recommendation whether CDC supports the granting of a waiver. 


5. Discretion 


As is generally the case for waivers, a waiver for communicable diseases of public health significance requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion. Hardship to a qualifying relative is not required for this waiver.[12] See INA 212(g)(1).


CDC’s response in support of granting the waiver 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.[13] If CDC certifies that an applicant who obtained an INA 212(g) waiver has failed to comply with any terms, conditions, or controls on the waiver, the applicant 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 or notify CDC that the applicant has failed to report for care. Generally, no further follow-up is required by the officer. If CDC does not issue a favorable recommendation, the officer generally should 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 carries great persuasive weight. 


Once a final decision (approval or denial) is made on the waiver, the officer should inform CDC of the decision. The officer should provide a brief statement indicating the final action and date of the action and forward it to CDC by any of the following methods:


Mail: 

Centers for Disease Control and Prevention (CDC)

Division of Global Migration and Quarantine

1600 Clifton Road, Mailstop E 03

Atlanta, GA 30333

Attention: Quality Assessment Program (QAP)/Waivers


Fax: (404) 639-4441


Email: cdcqap@cdc.gov 


D. Step-by-Step Checklist


Step-by-Step Checklist

Step 1

Check for qualifying relationship to determine whether the applicant is eligible for the waiver.

Step 2

Gather the necessary documentation for CDC review.

Step 3

Send documentation to CDC.

Step 4

Review CDC response.

Step 5

Analyze whether the waiver should be granted as a matter of discretion.

Step 6

Inform CDC of waiver decision.





Footnotes


1. [^] 

 See INA 212(g)(1) and INA 212(a)(1)(A)(i). INA 212(g)(1) was also amended to include a specific provision for battered immigrants. See section 1505(d) of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464 (October 28, 2000). For more information on the inadmissibility determination based on communicable disease of public health significance, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 6, Communicable Diseases of Public Health Significance.

2. [^] 

 A condition of granting a waiver for an applicant with a communicable disease of public health significance, such as tuberculosis, is that the applicant must agree to see a doctor immediately upon admission and make arrangements to receive private or public medical care for that disease. This requirement is reflected, for example, in the Application for Waiver of Grounds of Inadmissibility (Form I-601), TB Supplement.

3. [^] 

 See INA 212(g)(1)(B).

4. [^] 

 Note that an applicant who has been determined to have a Class A condition involving a communicable disease of public health significance may successfully complete treatment. If, after treatment, the civil surgeon or panel physician certifies that the applicant now has a Class B condition, the applicant is no longer inadmissible and does not need a waiver

5. [^] 

 See 42 CFR 34.2(b) as amended by 74 FR 56547 (November 2, 2009).

6. [^] 

 USCIS interprets the references to “unmarried son or daughter” as embracing both those sons and daughters who qualify as “children” because they are not yet 21 years old and sons and daughters who are over 21, so long as they are not married. 

7. [^] 

 USCIS interprets “minor unmarried lawfully adopted child” as a clarifying, not as a restricting, provision. Therefore, an applicant is eligible to apply for this waiver if he or she qualifies as the “child” of a citizen or permanent resident (or a  person who has received an immigrant visa) under any provision of INA 101(b)(1). This includes, but is not limited to, both children adopted abroad to be admitted in class IR3 or IH3 and children whose adoption will be finalized in the United States to be admitted in class IR4 or IH4. 

8. [^] 

 Under INA 204(a)(1)(A)(iii) or INA 204(a)(1)(A)(iv) or INA 204(a)(1)(B)(ii) or INA 204(a)(1)(B)(iii), including derivative children of the person. This includes self-petitioning spouses and children eligible for classification under INA 204(a)(1)(A)(v) or INA 204(a)(1)(B)(iv).

9. [^] 

 TB is currently the only communicable disease of public health significance that requires a supplement.

10. [^] 

 For instance, evidence of the family relationship.

11. [^] 

 Report of 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.

12. [^] 

 See INA 212(g)(1).

13. [^] 

 If CDC certifies that an applicant who obtained an INA 212(g) waiver has failed to comply with any terms, conditions, or controls on the waiver, the applicant 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 or notify CDC that the applicant has failed to report for care. Generally, no further follow-up is required by the officer.




Updates


Date Details
January 28, 2014
POLICY ALERT

Guidance for Health-Related Grounds of Inadmissibility and Waivers

​USCIS is issuing guidance in the USCIS Policy Manual on the health-related grounds of inadmissibility under INA 212(a)(1) and corresponding waivers under INA 212(g).

Read more »


Current as of April 8, 2014