USCIS Policy Manual

Current as of January 16, 2019

Volume 8 - Admissibility

Part B - Health-Related Grounds of Inadmissibility

Chapter 1 - Purpose and Background

A. Purpose

The medical grounds of inadmissibility, the medical examination of foreign nationals, and the vaccinations administered to foreign nationals are designed to protect the health of the United States population. The immigration medical examination, the resulting medical examination report, and the vaccination record provide the information USCIS uses to determine if a foreign national meets the health-related standards for admissibility.

Four basic medical conditions may make an applicant inadmissible on health-related grounds:

Communicable disease of public health significance,

An immigrant’s failure to show proof of required vaccinations,

Physical or mental disorder with associated harmful behavior, and

Drug abuse or addiction.

B. Background

Public health concerns have been reflected in U.S. immigration law since the Immigration Act of 1882. [1] See the Immigration Act of 1882, 22 Stat. 214 (August 3, 1882). Among others, “persons suffering from a loathsome or a dangerous contagious disease” were not allowed to enter the United States. [2] See the Immigration Act of 1891, 26 Stat. 1084 (March 3, 1891). In 1990, Congress revised and consolidated all of the grounds of inadmissibility. It narrowed health-related grounds of inadmissibility to include only applicants with communicable diseases, physical or mental disorders with associated harmful behavior, or those with drug abuse or addiction problems. [3] See the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (November 29, 1990).

As of 1996, Congress requires all immigrant visa and adjustment of status applicants to establish that they have been vaccinated against certain vaccine-preventable diseases. [4] See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996). See INA 212(a)(1)(A)(ii).

C. Role of the Department of Health and Human Services (HHS)

Because medical knowledge and public health concerns can and do change over time, Congress gave the Department of Health and Human Services (HHS) the authority to designate by regulations which conditions make a person inadmissible on health-related grounds.

The HHS component charged with defining these medical conditions is the Centers for Disease Control and Prevention (CDC). CDC’s responsibilities include:

Publishing regulations addressing health-related conditions that render an applicant inadmissible;

Establishing the medical examination requirements in its Technical Instructions for Medical Examination of Aliens (Technical Instructions) that are binding on civil surgeons in the United States, panel physicians overseas, USCIS officers, and State Department consular officers; [5] Officers and designated physicians must obtain the Technical Instructions from CDC’s website at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. Updates to the Technical Instructions must also be followed.

Responding to medical questions that officers, civil surgeons, and panel physicians may have based on the Technical Instructions; [6] CDC can be reached at cdcqap@cdc.gov. Officers should identify themselves as an immigration officer in the e-mail. This e-mail address is not for inquiries from the public. It is only for inquiries from immigration officers and civil surgeons. Inquiries from the public should be submitted to CDC INFO at http://www.cdc.gov/cdc-info/requestform.html. and

Advising USCIS on the adjudication of medical waivers.

D. Role of the Department of Homeland Security (DHS)

Congress authorizes the Department of Homeland Security (DHS) to determine a foreign national’s admissibility to the United States, which includes determinations based on health reasons. [7] See INA 212(a). DHS must follow HHS regulations and instructions when determining whether an applicant is inadmissible on health-related grounds. [8] See INA 212(a)(1)(A).

Congress also empowers DHS to designate qualified physicians as civil surgeons who conduct medical examinations of foreign nationals physically present in the United States. [9] See INA 232.

E. Making a Medical Inadmissibility Determination

To make a medical inadmissibility determination, the officer should follow the steps outlined below:

Overview of Process of Making a Medical Inadmissibility Determination

Step of Adjudication

Where can I find
​information

​on this step?

Step 1: Is the applicant subject to health-related grounds of inadmissibility or is there another reason that requires the applicant to undergo a medical examination?

Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3]

Step 2: If required, has the applicant been medically examined by the appropriate physician and is the appropriate medical documentation in the file?

Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3]

Step 3: Did the civil surgeon properly complete the then-current version of the Form I-693 and is the Form I-693 valid at the time of adjudication?

Chapter 4, Review of Medical Examination Documentation [8 USCIS-PM B.4] through Chapter 10, Other Medical Conditions [8 USCIS-PM B.10]

Step 4: Is the applicant inadmissible based on health-related grounds?

Chapter 11, Inadmissibility Determination [8 USCIS-PM B.11]

Step 5: Is the applicant inadmissible based on grounds other than health-related grounds, as evidenced by the medical documentation?

Chapter 11, Inadmissibility Determination, Section D, Other Grounds of Inadmissibility [8 USCIS-PM B.11(D)]

F. Legal Authorities

INA 212(a)(1)Health-related grounds

INA 221(d)Physical examination

INA 232; 8 CFR 232Detention of aliens for physical and mental examination

42 U.S.C. 252 – Medical examination of aliens

42 CFR 34 – Medical examination of aliens

Technical Instructions for Civil Surgeons (Technical Instructions), and updates [10] Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

Footnotes

1.

See the Immigration Act of 1882, 22 Stat. 214 (August 3, 1882).

 

2.

See the Immigration Act of 1891, 26 Stat. 1084 (March 3, 1891).

 

3.

See the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (November 29, 1990).

 

4.

See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996). See INA 212(a)(1)(A)(ii).

 

5.

Officers and designated physicians must obtain the Technical Instructions from CDC’s website at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. Updates to the Technical Instructions must also be followed.

 

6.

CDC can be reached at cdcqap@cdc.gov. Officers should identify themselves as an immigration officer in the e-mail. This e-mail address is not for inquiries from the public. It is only for inquiries from immigration officers and civil surgeons. Inquiries from the public should be submitted to CDC INFO at http://www.cdc.gov/cdc-info/requestform.html.

 

7.

See INA 212(a).

 

8.

See INA 212(a)(1)(A).

 

9.

See INA 232.

 

10.

Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

 

Chapter 2 - Medical Examination and Vaccination Record

A. Purpose of the Medical Examination and Vaccination Report

The results of the medical examination and vaccination record determine whether an applicant is inadmissible on health-related grounds. The medical examination documentation indicates whether the applicant has either a Class A or Class B medical condition and the vaccination record shows whether the applicant has complied with all vaccination requirements.

B. Class A and B Conditions and Their Impact on Admissibility

Class A and B conditions are defined in Department of Health and Human Services (HHS) regulations. [1] See 42 CFR 34.2 .

Class A conditions are medical conditions that render a person inadmissible and ineligible for a visa or adjustment of status. [2] Class A conditions are medical conditions mentioned in INA 212(a)(1)(A). See 42 CFR 34.2(d). A Class A medical condition is a:

Communicable disease of public health significance per HHS regulation;

A failure to present documentation of having received vaccinations against vaccine-preventable diseases; [3] This Class A medical condition only applies to foreign nationals who seek admission as immigrants, or who seek adjustment of status to one lawfully admitted for permanent residence. Additionally, a child who is adopted and under the age of 10 years or younger is not deemed to have a Class A condition if the following conditions apply: Prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the vaccination requirement , and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations required for immigration purposes. See 42 CFR 34.2(d)(2).

Present or past physical or mental disorder with associated harmful behavior or harmful behavior that is likely to recur; and

Drug abuse or addiction.

Class B conditions are defined as physical or mental health conditions, diseases, or disability serious in degree or permanent in nature. [4] See 42 CFR 34.2(e) . This may be a medical condition that, although not rendering an applicant inadmissible, represents a departure from normal health or well-being that may be significant enough to:

Interfere with the applicant’s ability to care for himself or herself, to attend school, or to work; or

Require extensive medical treatment or institutionalization in the future.

C. Completion of a Medical Examination

When a medical examination is required to determine the applicant’s admissibility, the person must be examined by a physician who is designated to perform this examination.

By statute, any medical officer in the U.S. Public Health Service may conduct the examination. However, this rarely occurs. Most medical examinations are conducted by a physician designated as a civil surgeon by USCIS [5] See INA 232 and 8 CFR 232. or designated as a panel physician abroad by the U.S. Department of State (DOS). Civil surgeons complete medical examinations for applicants in the United States, while panel physicians complete medical examinations for immigrant visa and refugee applicants seeking immigration benefits from outside the United States.

Footnotes

1.

See 42 CFR 34.2 .

 

2.

Class A conditions are medical conditions mentioned in INA 212(a)(1)(A). See 42 CFR 34.2(d).

 

3.

This Class A medical condition only applies to foreign nationals who seek admission as immigrants, or who seek adjustment of status to one lawfully admitted for permanent residence. Additionally, a child who is adopted and under the age of 10 years or younger is not deemed to have a Class A condition if the following conditions apply: Prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the vaccination requirement , and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations required for immigration purposes. See 42 CFR 34.2(d)(2).

 

4.

See 42 CFR 34.2(e) .

 

5.

See INA 232 and 8 CFR 232.

 

Chapter 3 - Applicability of Medical Examination and Vaccination Requirement

A. Requirements by Benefit Type

Medical examination and vaccination requirements vary depending on the immigration benefit the person is seeking.

Most applicants subject to medical grounds of inadmissibility must undergo a medical examination to determine their admissibility. Some applicants, however, do not need to undergo a medical examination unless there is a specific concern. Nonimmigrants, for example, are in this category.

Even if the applicant is not subject to health-related grounds of inadmissibility, the officer may still order a medical examination as a matter of discretion if the evidence indicates that there may be a public health concern. [1] Based on the conditions listed in INA 212(a)(1). This could apply, for example, when an officer adjudicates a request for parole. [2] See INA 212(d)(5)(A).

In general, an immigration officer may order a medical examination of an applicant at any time, if the officer is concerned that the applicant may be medically inadmissible. [3] See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978) (The applicant has the burden of proof to establish his or her admissibility to the United States according to INA 291; the burden never shifts to the government). This rule applies regardless of the type of immigration benefit sought, or whether the applicant is applying for a visa, seeking entry at a U.S. port-of-entry, or already in the United States.

A civil surgeon in the United States can only perform a medical examination for purposes of a benefits application processed within the United States. Similarly, a panel physician abroad can generally only perform a medical examination for purposes of a visa application processed outside the United States. There are limited exceptions where an applicant seeking a benefit application inside the United States does not have to repeat a medical examination performed by a panel physician. The following chart highlights the benefits that require a medical examination and vaccinations, and whether a civil surgeon or panel physician should conduct the medical examination. [4] Special considerations that apply to certain benefit types are noted in Section B, Special Considerations [8 USCIS-PM B.3(B)].

Medical Examination and Vaccination Requirements by Benefit Type

Benefit Type

Medical Examination

(Yes or No)

Vaccination

(Yes or No)

Panel Physician or
​Civil Surgeon

Immigrant visa applicants, applying with U.S. Department of State (DOS)

Yes

Yes

Panel physician

Adjustment applicants

Yes

Yes

Civil surgeon

Nonimmigrant visa applicants, applying with DOS; and nonimmigrants seeking change/extension of status while in the United States [5] See INA 248. See 8 CFR 214.1 and 8 CFR 248.

No (with some exceptions) [6] See Section B, Special Considerations [8 USCIS-PM B.3(B)].

No

N/A

Temporary Protected Status (TPS) applicants [7] See INA 244.

No (with some exceptions) [8] See Section B, Special Considerations [8 USCIS-PM B.3(B)].

No

N/A

K or V visa applicants, applying with DOS [9] See INA 214. See 8 CFR 214.2(k) and 8 CFR 214.15.

Yes

No

Panel physician

Nonimmigrant seeking change of status to V status [10] See INA 214(q) and 8 CFR 214.15.

Yes

No

Civil surgeon

K or V nonimmigrants applying for adjustment of status in the United States [11] See INA 245 and 8 CFR 245.

May be required [12] See Section B, Special Considerations [8 USCIS-PM B.3(B)].

Yes

Panel physician and/or civil surgeon

Refugee applicants, including principal and derivative applicants overseas [13] See INA 207 and 8 CFR 207.7. See INA 208 and 8 CFR 208.21.

Yes

No

Panel physician

Applicants seeking derivative refugee or derivative asylee status while in the United States [14] See INA 207 and 8 CFR 207.

No

No

N/A

Principal asylum applicants in the United States [15] See INA 208 and 8 CFR 208.

No

No

N/A

Applicants seeking derivative asylee status with DOS [16] See INA 208 and 8 CFR 208.21.

Yes

No

Panel physician

Refugee-based adjustment applicants [17] See INA 209 and 8 CFR 209.1.

May be required [18] See Section B, Special Considerations [8 USCIS-PM B.3(B)].

Yes

Civil surgeon [19] Including state or local health department physicians, who are blanket designated by USCIS as civil surgeons for purposes of completing the vaccination record for refugees adjusting status only.

Asylees applying for adjustment of status [20] See INA 209 and 8 CFR 209.2.

May be required [21] See Section B, Special Considerations [8 USCIS-PM B.3(B)].

Yes

Civil surgeon

Kurdish asylees paroled under Operation Pacific Haven applying for adjustment of status

Yes

Yes

Panel physician or civil surgeon

Registry applicants

No

No

N/A

North American Indians entering the United States [22] See 8 CFR 289.1 and 8 CFR 289.2. American Indians born in Canada who meet the regulatory requirements may be regarded as having been admitted for lawful permanent residence. Because neither an immigrant visa nor an adjustment of status application is required, the applicant is not required to comply with the medical examination and vaccination requirements.

No

No

N/A

Children of returning residents entering the United States [23] See INA 101(a)(27)(A) and 22 CFR 42.22. or children of U.S. nationals

No

No

N/A

Internationally adopted orphans [24] See INA 101(b)(1)(F), including Hague Convention adoptees.

Yes

Yes

(exception available)

Panel physician

B. Special Considerations

1. Nonimmigrants and TPS Applicants

In general, nonimmigrant visa applicants, nonimmigrants seeking change or extension of status, and Temporary Protected Status (TPS) applicants are only medically examined if the consular officer or immigration officer has concerns as to the applicant’s inadmissibility on health-related grounds. Customs and Border Protection (CBP) officers at ports-of-entry may also require a nonimmigrant arriving with or without a visa to submit to a medical examination to determine whether a medical ground of inadmissibility applies.

2. K or V Visa Applicants Applying with DOS [25] See INA 214. See 8 CFR 214.2(k) and 8 CFR 214.15. See 9 FAM 302.2-3(A), Medical Examinations – Medical Examination for Fiancé(e)s.

While the consular officer may encourage compliance, the consular officer cannot deny a K or V visa for lack of compliance with the vaccination requirements.

Some panel physicians may perform the vaccination assessment in anticipation of the applicant’s later adjustment of status application.

3. Nonimmigrants Applying for Change of Status to V Status

For nonimmigrants applying for change of status to V status, the civil surgeon may perform the vaccination assessment in anticipation of the applicant’s later adjustment of status application.

4. K or V Nonimmigrants Applying for Adjustment [26] See INA 245 and 8 CFR 245.

K and V nonimmigrants applying for adjustment of status are not required to repeat the medical examination if the application was filed within one year of the date of the original medical examination, and:

The medical examination did not reveal a Class A medical condition; or

The applicant received a conditional waiver in conjunction with the K or V nonimmigrant visa or the change of status to V and the applicant submits evidence of compliance with the waiver terms and conditions. [27] See 8 CFR 245.5.

If a new medical examination is required and reveals a Class A medical condition, a new waiver application will also be required. In such cases, the officer should determine whether the applicant complied with the terms and conditions of the first waiver, if applicable. Such determination should be given considerable weight in the adjudication of a subsequent waiver application. [28] See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more information on medical waivers.

Even if a new medical examination is not required, applicants must still comply with the vaccination requirements if the vaccination record was not included as part of the original medical examination report. If the vaccination report was properly completed at the time of the overseas examination, the officer may accept the vaccination assessment completed by the panel physician.

An applicant’s overseas medical examination report completed by a panel physician should already be in the applicant’s A-file. If it is not in the A-file, the officer should request the medical examination report through a Request for Evidence (RFE).

If the applicant was granted a change of status to V in the United States, [29] Under INA 214(q). the medical examination report completed by the civil surgeon should be in the A-file created at the time that the change of status was initially granted.

5. Refugees Applying for Adjustment [30] See INA 209 and 8 CFR 209.1.

By regulation, refugees applying for adjustment of status generally do not need to repeat the entire medical examination if the applicant was already examined by a panel physician for purposes of admission to the United States. [31] See 8 CFR 209.1(c). Refugees must undergo an additional medical examination only if the original examination by the panel physician revealed a Class A medical condition.

Family members granted refugee status in the United States must submit to a medical examination at the time they seek to adjust their status.

All refugees must comply with the vaccination requirements at the time of adjustment of status by submitting the relevant parts of the Report of Medical Examination and Vaccination Record (Form I-693) completed by a designated civil surgeon. A prior vaccination assessment performed by the panel physician cannot be used for purposes of the adjustment of status application. [32] See 8 CFR 209.1(c).

USCIS granted a blanket civil surgeon designation to state and local health department physicians for the limited purpose of completing the vaccination record for refugees applying for adjustment of status.

6. Asylees Applying for Adjustment

All asylees are required to undergo an immigration medical exam, including vaccination assessment, at time of adjustment. [33] See 8 CFR 209.2(d).

However, according to USCIS policy developed in consultation with the Centers for Disease Control and Prevention, an asylee dependent who had a medical examination conducted overseas is not required to undergo a new medical exam when applying for adjustment of status if:

The results of the overseas medical examination are contained in the A-file and no Class A condition was reported;

The asylee has applied for adjustment of status within one year of eligibility to file; and

No evidence in the A-file or testimony given at the interview suggests that the asylee has acquired a Class A condition after his or her entry into the United States.

Even if an asylee dependent may use the result of the previous examination, he or she must still establish compliance with the vaccination requirements and submit the vaccination assessment with his or her adjustment of status application. This requirement applies even if the applicant had a vaccination assessment completed overseas by a panel physician. To comply with the requirement, the applicant must have the relevant parts of Form I-693 completed by the civil surgeon.

7. Children of Returning Residents Entering the United States [34] See INA 101(a)(27)(A) and 22 CFR 42.22.

For children of returning residents entering the United States, as long as the parent’s visa is valid or the parent is a U.S. resident or U.S. national, there are no medical examination or vaccination requirements.

Children of returning residents entering the United States are:

Children born abroad after the parent has been issued an immigrant visa and while the parent is applying for admission to the United States.

Children born abroad during the temporary visit abroad of a mother who is a national or permanent resident of the United States.

8. Internationally Adopted Orphans [35] See INA 101(b)(1)(F). See Chapter 9, Vaccination Requirement, Section G, Exceptions for Certain Adopted Children [8 USCIS-PM B.9(G)] for more on this exception.

Children 10 years of age or younger who are classified as orphans and who are applying for IR-3 and IR-4 (orphans) and IH-3 and IH-4 (Hague Convention adoptees) visas are not required to comply with the vaccination requirements before admission to the United States. [36] See INA 212(a)(1)(C), as amended by Section 2 of the International Adoption Simplification Act, Pub. L. 111-287, 124 Stat. 3058, 3058 (November 30, 2010).

Footnotes

1.

Based on the conditions listed in INA 212(a)(1).

 

2.

See INA 212(d)(5)(A).

 

3.

See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978) (The applicant has the burden of proof to establish his or her admissibility to the United States according to INA 291; the burden never shifts to the government).

 

4.

Special considerations that apply to certain benefit types are noted in Section B, Special Considerations [8 USCIS-PM B.3(B)].

 

5.

See INA 248. See 8 CFR 214.1 and 8 CFR 248.

 

6.

See Section B, Special Considerations [8 USCIS-PM B.3(B)].

 

7.

See INA 244.

 

8.

See Section B, Special Considerations [8 USCIS-PM B.3(B)].

 

9.

See INA 214. See 8 CFR 214.2(k) and 8 CFR 214.15.

 

10.

See INA 214(q) and 8 CFR 214.15.

 

11.

See INA 245 and 8 CFR 245.

 

12.

See Section B, Special Considerations [8 USCIS-PM B.3(B)].

 

13.

See INA 207 and 8 CFR 207.7. See INA 208 and 8 CFR 208.21.

 

14.

See INA 207 and 8 CFR 207.

 

15.

See INA 208 and 8 CFR 208.

 

16.

See INA 208 and 8 CFR 208.21.

 

17.

See INA 209 and 8 CFR 209.1.

 

18.

See Section B, Special Considerations [8 USCIS-PM B.3(B)].

 

19.

Including state or local health department physicians, who are blanket designated by USCIS as civil surgeons for purposes of completing the vaccination record for refugees adjusting status only.

 

20.

See INA 209 and 8 CFR 209.2.

 

21.

See Section B, Special Considerations [8 USCIS-PM B.3(B)].

 

22.

See 8 CFR 289.1 and 8 CFR 289.2. American Indians born in Canada who meet the regulatory requirements may be regarded as having been admitted for lawful permanent residence. Because neither an immigrant visa nor an adjustment of status application is required, the applicant is not required to comply with the medical examination and vaccination requirements.

 

23.

See INA 101(a)(27)(A) and 22 CFR 42.22.

 

24.

See INA 101(b)(1)(F), including Hague Convention adoptees.

 

25.

See INA 214. See 8 CFR 214.2(k) and 8 CFR 214.15. See 9 FAM 302.2-3(A), Medical Examinations – Medical Examination for Fiancé(e)s.

 

26.

See INA 245 and 8 CFR 245.

 

27.

See 8 CFR 245.5.

 

28.

See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more information on medical waivers.

 

29.

Under INA 214(q).

 

30.

See INA 209 and 8 CFR 209.1.

 

31.

See 8 CFR 209.1(c).

 

32.

See 8 CFR 209.1(c).

 

33.

See 8 CFR 209.2(d).

 

34.

See INA 101(a)(27)(A) and 22 CFR 42.22.

 

35.

See INA 101(b)(1)(F). See Chapter 9, Vaccination Requirement, Section G, Exceptions for Certain Adopted Children [8 USCIS-PM B.9(G)] for more on this exception.

 

36.

See INA 212(a)(1)(C), as amended by Section 2 of the International Adoption Simplification Act, Pub. L. 111-287, 124 Stat. 3058, 3058 (November 30, 2010).

 

Chapter 4 - Review of Medical Examination Documentation

A. Results of the Medical Examination

The physician must annotate the results of the examination on the following forms:

Panel Physicians

Panel physicians must annotate the results of the medical examination on the 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. [1] As of October 1, 2013, panel physicians only use DS-2054. The DS-2053 is no longer used after that date.

Civil Surgeons

Civil surgeons must annotate the medical examination results on the Report of Medical Examination and Vaccination Record (Form I-693).

B. Documentation Completed by Panel Physician

Since a State Department consular officer reviews the medical documentation completed by a panel physician as part of the overseas visa process, a USCIS officer may assume that the medical documentation is properly completed. [2] The Technical Instructions for Panel Physicians may differ from the Technical Instructions for Civil Surgeons. As long as the DS form is properly completed, the officer should accept the finding of the consular officer as correct.

If the USCIS officer notices a significant irregularity such as an omission of a particular section, the officer may issue a Request for Evidence (RFE) to have a civil surgeon in the United States complete the missing part(s) of the medical examination. A civil surgeon should address any deficiency by completing the respective parts of a Form I-693 according to the Technical Instructions for Civil Surgeons issued by the Centers for Disease Control and Prevention (CDC). [3] In this case, because the DS form was completed by a panel physician, the officer should retain the original document. The RFE must specify which sections of Form I-693 have to be completed by a civil surgeon. This should only happen in rare instances.

Applicants who have already been examined abroad and are not required to repeat the medical examination in the United States may still have to show proof of the vaccination requirement. [4] See Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3] for specific information on who is required to be examined and to what extent.

C. Documentation Completed by Civil Surgeon

1. Civil Surgeon Designation

Except for physicians who are Public Health Service officers, only physicians designated by USCIS to act as civil surgeons may conduct an immigration medical examination in the United States and complete Form I-693. [5] Form I-693 can only be used for immigration benefits that are granted in the United States. Only doctors of medicine (M.D.) and doctors of osteopathy (D.O.) who are currently licensed to practice as physicians may be designated. [6] See INA 232 and 8 CFR 232. The physician must be designated as a civil surgeon at the time of the completion of the medical examination.

To determine whether the physician is designated as a civil surgeon, the officer should consult the designated civil surgeon list at www.uscis.gov/tools (via the Find a Doctor tool).

2. Complete Form

The following requirements must always be met regarding any Form I-693 submitted to USCIS:

The form must be completed legibly;

All required parts of the form must be completed; [7] Some parts of the form may not be required. For example, if an applicant is not required to undergo a chest X-ray in the TB section of the medical examination report, the chest X-ray section would not have to be completed.

The form must be signed and dated by the designated civil surgeon who conducted the medical examination; [8] See Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)].

The form must be signed and dated by the applicant who was examined; [9] See Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)].

If applicable, the form must be signed and dated by the physician(s) completing referral evaluations; [10] See Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)].

The form must still be valid; [11] See Subsection 4, Validity Period of Form I-693 (Including Use of Prior Versions) [8 USCIS-PM B.4(C)(4)]. and

The form must be in a sealed envelope as detailed in the form’s instructions.

If the above requirements are not met, or if there is evidence that the envelope has been tampered with, the officer must return the original Form I-693 to the applicant for corrective action. Whenever an original is returned to the applicant, the officer should retain a copy.

A response to an RFE is acceptable if it is completed by a civil surgeon in one of the following ways:

The civil surgeon annotates the original medical examination in the deficient part(s), and both the applicant and the civil surgeon re-sign and re-date their respective certifications.

The civil surgeon re-completes an entirely new Form I-693, and corrects for the original deficiency.

The civil surgeon completes the following sections of a new form: The part containing the applicant’s information, [12] As part of completing the Form I-693, the civil surgeon must ensure that the applicant has signed the applicant’s certification. the part(s) that were deficient in the original examination, and the part containing the civil surgeon’s information and certification. The civil surgeon must include the original medical examination documentation with the newly completed parts.

The applicant may return to the original civil surgeon who performed the immigration medical exam or a new civil surgeon to correct the form.

The civil surgeon must place the corrected form [13] Along with the original Form I-693, if separate from the corrected form. in a sealed envelope. The applicant must then return the sealed envelope to USCIS.

3. Signatures

The applicant, the civil surgeon, and any other health care provider who evaluated the applicant as part of the immigration medical examination should sign the form, to verify that the content of their representations is truthful.

Signature of the Civil Surgeon

The civil surgeon’s signature must be an original signature. Stamps of the physician’s signature or other substitutes, or copies of the civil surgeon’s original signature, are not acceptable (except for blanket-designated health departments or military physicians as described below).

As outlined in CDC’s Technical Instructions, the civil surgeon is only permitted to sign the Form I-693 after he or she has completed the entire medical examination. An examination is not completed until any prescribed treatment for a Class A condition has been administered.

There may be circumstances when an applicant refuses to undergo one part of the examination, but the civil surgeon certifies the form with a notation that part of the exam is not complete. In these cases, the officer should issue an RFE to the applicant for corrective action.

The civil surgeon might also diagnose a Class A condition for which the applicant refuses treatment. The civil surgeon might then annotate the Class A condition but still certify and sign the form. In this case, the officer should not return the form for corrective action. The officer should determine that the applicant is inadmissible and ask the applicant to request a waiver, if available. [14] See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more on waivers.

Signature of the Health Department

In agreement with CDC, USCIS granted blanket civil surgeon designation to local and state health departments in the United States. This blanket designation allows health departments to complete the vaccination portion of Form I-693 for refugees seeking adjustment if they have a physician who meets the professional qualifications for a civil surgeon. If a refugee only requires the vaccination assessment, the only parts of the form that need to be completed are the applicant’s information, the vaccination assessment, and the certifications. The other parts are irrelevant and do not have to be submitted.

If the health department physician is completing only a vaccination assessment for refugees seeking adjustment, the physician’s signature may be either an original (handwritten) or a stamped signature, as long as it is the signature of the health department physician. The attending nurse may, but does not have to, co-sign with the physician. The signature of the physician must be accompanied by the health department’s stamp or raised seal, whichever is customarily used.

If the health department does not properly sign, the officer should return the medical documentation to the applicant for corrective action. [15] See Part C, Civil Surgeon Designation and Revocation [8 USCIS-PM C] for more information on the blanket civil surgeon designation for health departments.

Signature of a Military Physician designated as a Civil Surgeon for Members and Veterans of the Armed Forces

To ease the difficulties encountered by physicians and applicants in the military, USCIS issued a blanket civil surgeon designation to qualifying military physicians to permit them to perform the immigration medical examination and complete the Form I-693 for eligible members and veterans of the U.S. armed forces and their dependents. [16] See Part C, Civil Surgeon Designation and Revocation [8 USCIS-PM C] for more information on the blanket civil surgeon designation for military physicians.

Pursuant to the understanding reached between USCIS and the CDC, military physicians who qualify under this blanket civil surgeon designation may perform the entire immigration medical examination as long as the exam is conducted in the United States on the premises of a Military Treatment Facility (MTF) and conducted for a U.S. armed forces member, veteran, or dependent who is eligible to receive medical care at the MTF.

If operating under the blanket civil surgeon designation for military physicians, a physician’s signature may be either an original (handwritten) or stamped signature, as long as it is the signature of a qualifying military physician. Nurses and other health care professionals may, but are not required to, co-sign the form. The signature of the physician must be accompanied by the official stamp or raised seal of the MTF, whichever is customarily used.

If the military physician does not properly sign, the officer should return the medical documentation to the applicant for corrective action.

Signature of the Applicant

The applicant or the civil surgeon may complete the section about the applicant’s information. The civil surgeon must always verify the applicant’s identity by requiring a government-issued ID, as stated in CDC’s Technical Instructions.

The applicant must sign the certification only when instructed by the civil surgeon. By signing the form, the applicant attests that he or she consented to the medical examination and that any information provided in relation to the medical examination is truthful.

Whenever the civil surgeon orders a test that he or she does not perform personally, the civil surgeon must ensure that the physician or staff to whom the applicant is referred checks the identity of the applicant by requesting a government-issued ID. [17] By signing the form, the civil surgeon certifies that he or she has examined the applicant according to the procedures and requirements outlined in the Technical Instructions, Form I-693, and form instructions. Officers do not need to verify whether the civil surgeon instructed the referring physician to check the applicant’s identity.

An officer should follow the chart below to determine whether the applicant or a legal guardian must sign the form. [18] See 8 CFR 103.2(a)(2).

Signature of the Applicant

Age of Applicant

Signature Requirement

Age 14 or Older

The applicant must sign Form I-693. However, a legal guardian may sign for a mentally incompetent person.

Under Age 14

Either the applicant, a parent, or legal guardian may sign the Form I-693. The officer should not reject the form as improperly completed if only the applicant, parent, or guardian signs.

Signature of Physicians Receiving Referrals for Evaluation

If the civil surgeon is unable to perform a particular medical assessment, he or she is required to refer the applicant to another physician. The physician receiving the referral is required to complete the appropriate section on Form I-693 after he or she has completed the evaluation of the applicant’s condition. The civil surgeon may not sign the civil surgeon’s certification on the form until the civil surgeon has received and reviewed the report of the physician who received the referral. If the referring physician ordered treatment, the civil surgeon may not sign the certification until the treatment has been completed.

Contracted services used by the civil surgeon to complete a step in the medical examination are not considered referrals. Therefore, the referral section can be blank in such cases. [19] Civil surgeons are, however, still responsible for ensuring that the contractor properly checks the applicant’s ID. For example, if the civil surgeon uses a contractor to draw blood, the referral section does not have to be completed. However, if the Technical Instructions require a referral to the Health Department because the applicant has TB, the officer must make sure that the referral section is completed.

4. Validity Period of Form I-693 (Including Use of Prior Versions)

Evidentiary Value

A person seeking an immigration benefit and who is subject to the health-related grounds of inadmissibility must establish that he or she is not inadmissible on health-related grounds. [20] See INA 212(a)(1). In general, those applying for immigration benefits while in the United States must use Form I-693 to show they are free from any conditions that would render them inadmissible under the health-related grounds.

An officer may determine that the applicant has met the burden of proof required to establish that he or she is free from a medical condition that would render the applicant inadmissible on health-related grounds if all of the following criteria are met:

A USCIS-designated civil surgeon performed the immigration medical examination in accordance with HHS regulations;

The civil surgeon and the applicant properly completed the current version of Form I-693; [21] See Section C, Documentation Completed by Civil Surgeon [8 USCIS-PM B.4(C)].

The Form I-693 that the applicant submitted is signed by a civil surgeon no more than 60 days before the date the applicant filed an application for the underlying immigration benefit; [22] For example, Form I-485. Certain Form I-693 submitted to USCIS before November 1, 2018 may be subject to the previous policy in effect. See below for more information.

The Form I-693 establishes that the applicant does not have a Class A medical condition and has complied with the vaccination requirements or is granted a waiver; [23] For more information on determining inadmissibility based on medical grounds, see Chapter 5, Review of Overall Findings [8 USCIS-PM B.5] through Chapter 11, Inadmissibility Determination [8 USCIS-PM B.11]. and

USCIS issues a decision on the underlying immigration benefit application no more than 2 years after the date the civil surgeon signed Form I-693. [24] USCIS considers the date the civil surgeon signed the Form I-693 as the date the civil surgeon completed the examination. Certain Form I-693s submitted to USCIS before November 1, 2018 may be subject to the previous policy in effect. See below for more information.

In general, if any one of the above criteria is not met, the applicant has not met the burden of proof required to establish that he or she is free of a medical condition that would render the applicant inadmissible to the United States on health-related grounds. In this case, the officer should follow standard operating procedures regarding issuance of a denial or an RFE or Notice of Intent to Deny (NOID) to address the deficiency.

Additionally, even if all of the above criteria are met, but the officer has reason to believe that the applicant’s medical condition has changed since submission of the Form I-693 such that the applicant’s admissibility could be affected, the officer, in his or her discretion, may request that the applicant submit a new Form I-693.

Special rules may apply to certain foreign nationals who were examined overseas, including certain nonimmigrant fiancé(e)s or spouses of U.S. citizens (K visa), spouses of lawful permanent residents (V visa), refugees, and asylee dependents. Such foreign nationals usually do not need to repeat the full immigration medical exam in the United States for purposes of adjustment of status. [25] See Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3] for more information on these special considerations.

Generally, the only acceptable version of Form I-693 is the version in use at the time of the medical examination. [26] In other words, the Form I-693 must be a valid form version as of the date the civil surgeon signed the form. Prior versions of Form I-693 are generally not acceptable because they may lack necessary information. [27] See http://www.uscis.gov/i-693 for the current and accepted version(s) of the form.

Form I-693 Submitted to USCIS Before November 1, 2018

In 2018, USCIS revised its policy regarding the extent to which a Form I-693 retains its evidentiary value. This policy is effective November 1, 2018. Before November 1, 2018, the validity period policy provided Form I-693 retained its evidentiary value as long as it was submitted to USCIS within 1 year of the civil surgeon’s signature and USCIS issued a final decision on the underlying immigration benefit application within a year of the Form I-693’s submission to USCIS. This policy contained a maximum 2-year period during which Form I-693 retained its evidentiary value.

Due to increasing caseloads and more complex adjudications, USCIS observed an increasing number of cases where benefit applications could not be decided within 1 year from the date the Form I-693 was submitted. In these cases, USCIS would have to request a new Form I-693, further delaying the processing of the underlying application and inconveniencing the applicant.

The new policy, effective November 1, 2018, addresses these issues by realigning the existing 2-year period (during which Form I-693 retains its evidentiary value) to require applicants to complete their immigration medical examination closer in time to the filing of the underlying benefit application. This revised policy is intended to reduce the need for USCIS to request an updated Form I-693, thereby streamlining case processing and minimizing inconveniences to applicants.

Certain Form I-693 submitted to USCIS before November 1, 2018 may be subject to the previous validity period policy as noted in the section below.

A completed Form I-693 submitted to USCIS before November 1, 2018 retains its evidentiary value to support a finding that an applicant is not inadmissible based on health-related grounds if it meets any of the following scenarios:

The civil surgeon signs Form I-693 more than 60 days before the applicant files the underlying benefit application with USCIS, but the applicant submits Form I-693 to USCIS no more than 1 year after the civil surgeon signed Form I-693; and USCIS issues a decision on the underlying benefit application no more than 1 year after the date the applicant submitted Form I-693 to USCIS.

The civil surgeon signs Form I-693 no more than 60 days before the applicant files the underlying benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than 2 years after the date of the civil surgeon’s signature.

The civil surgeon signs Form I-693, and the applicant submits Form I-693, after the applicant files the benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than 2 years after the date of the civil surgeon’s signature.

In all cases, a Form I-693 submitted to USCIS more than 1 year after the date of the civil surgeon’s signature is insufficient for evidentiary purposes as of the time of its submission to USCIS. The table below illustrates these scenarios.

Form I-693 Submitted to USCIS Before November 1, 2018

When did civil

surgeon sign?

When was underlying benefit application filed with USCIS?

I-693 retains evidentiary

value through

No more than 1 year before I-693 submitted to USCIS

More than 60 days after civil surgeon signed the I-693

1 year from date applicant submitted I-693 to USCIS

No more than 60 days before underlying benefit application filed with USCIS

No more than 60 days after civil surgeon signed the I-693

2 years from date civil surgeon signed I-693

After the benefit application was filed with USCIS

Before the civil surgeon signed the I-693

2 years from date civil surgeon signed I-693

More than 1 year before I-693 submitted to USCIS

N/A – I-693 not valid at time applicant submits I-693 to USCIS

Form I-693 Submitted to USCIS On or After November 1, 2018

A completed Form I-693 submitted to USCIS on or after November 1, 2018 retains its evidentiary value to support a finding that an applicant is not inadmissible based on health-related grounds if it meets any of the following scenarios:

The civil surgeon signs Form I-693 no more than 60 days before the applicant files the underlying benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than 2 years after the date of the civil surgeon’s signature.

The civil surgeon signs the Form I-693, and the applicant submits Form I-693, after the applicant files the benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than 2 years after the date of the civil surgeon’s signature.

In all cases, a Form I-693 signed by a civil surgeon more than 60 days before the applicant files the underlying benefit application is insufficient for evidentiary purposes as of the time of its submission to USCIS. The table below illustrates these scenarios.

Form I-693 Submitted to USCIS On or After November 1, 2018

When did civil surgeon sign?

I-693 retains evidentiary value through

No more than 60 days before applicant filed underlying benefit application with USCIS

2 years from date civil surgeon signed I-693

After applicant filed benefit application with USCIS

2 years from date civil surgeon signed I-693

More than 60 days before applicant filed benefit application with USCIS

N/A – I-693 not valid at time applicant submits I-693 to USCIS

Timing of the Submission of the Medical Examination Report

Applicants may submit the Form I-693 medical examination report to USCIS:

Concurrently with the immigration benefit application; or

At any time after filing the immigration benefit application but before USCIS finalizes adjudication of that application. If not submitted simultaneously with the immigration benefit application, applicants may bring the medical examination report to an interview or wait until USCIS issues an RFE requesting the medical examination report.

Place of Submission of the Medical Examination Report

The medical examination report should be submitted to the appropriate location. [28] See http://www.uscis.gov/i-693 for location information.

Footnotes

1.

As of October 1, 2013, panel physicians only use DS-2054. The DS-2053 is no longer used after that date.

 

2.

The Technical Instructions for Panel Physicians may differ from the Technical Instructions for Civil Surgeons. As long as the DS form is properly completed, the officer should accept the finding of the consular officer as correct.

 

3.

In this case, because the DS form was completed by a panel physician, the officer should retain the original document. The RFE must specify which sections of Form I-693 have to be completed by a civil surgeon.

 

4.

See Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3] for specific information on who is required to be examined and to what extent.

 

5.

Form I-693 can only be used for immigration benefits that are granted in the United States.

 

6.

See INA 232 and 8 CFR 232.

 

7.

Some parts of the form may not be required. For example, if an applicant is not required to undergo a chest X-ray in the TB section of the medical examination report, the chest X-ray section would not have to be completed.

 

8.

See Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)].

 

9.

See Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)].

 

10.

See Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)].

 

11.

See Subsection 4, Validity Period of Form I-693 (Including Use of Prior Versions) [8 USCIS-PM B.4(C)(4)].

 

12.

As part of completing the Form I-693, the civil surgeon must ensure that the applicant has signed the applicant’s certification.

 

13.

Along with the original Form I-693, if separate from the corrected form.

 

14.

See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more on waivers.

 

15.

See Part C, Civil Surgeon Designation and Revocation [8 USCIS-PM C] for more information on the blanket civil surgeon designation for health departments.

 

16.

See Part C, Civil Surgeon Designation and Revocation [8 USCIS-PM C] for more information on the blanket civil surgeon designation for military physicians.

 

17.

By signing the form, the civil surgeon certifies that he or she has examined the applicant according to the procedures and requirements outlined in the Technical Instructions, Form I-693, and form instructions. Officers do not need to verify whether the civil surgeon instructed the referring physician to check the applicant’s identity.

 

18.

See 8 CFR 103.2(a)(2).

 

19.

Civil surgeons are, however, still responsible for ensuring that the contractor properly checks the applicant’s ID.

 

20.

See INA 212(a)(1).

 

21.

See Section C, Documentation Completed by Civil Surgeon [8 USCIS-PM B.4(C)].

 

22.

For example, Form I-485. Certain Form I-693 submitted to USCIS before November 1, 2018 may be subject to the previous policy in effect. See below for more information.

 

23.

For more information on determining inadmissibility based on medical grounds, see Chapter 5, Review of Overall Findings [8 USCIS-PM B.5] through Chapter 11, Inadmissibility Determination [8 USCIS-PM B.11].

 

24.

USCIS considers the date the civil surgeon signed the Form I-693 as the date the civil surgeon completed the examination. Certain Form I-693s submitted to USCIS before November 1, 2018 may be subject to the previous policy in effect. See below for more information.

 

25.

See Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3] for more information on these special considerations.

 

26.

In other words, the Form I-693 must be a valid form version as of the date the civil surgeon signed the form.

 

27.

See http://www.uscis.gov/i-693 for the current and accepted version(s) of the form.

 

28.

See http://www.uscis.gov/i-693 for location information.

 

Chapter 5 - Review of Overall Findings

A. Overall Finding of Admissibility

The civil surgeon should properly complete the part addressing when the medical examinations and any follow-up examinations took place. The civil surgeon should also mark the appropriate boxes in the “Summary of Overall Findings” section.

If the summary indicates a Class A condition, the officer should ensure that the findings in the other form sections correspond. If they do correspond, the applicant is inadmissible. If there is conflicting information, the officer should return the form to the applicant for corrective action.

If the civil surgeon omits the summary finding entirely, the officer should check the findings in the other form sections to determine whether the applicant has a Class A condition. If all sections are properly completed, and no Class A condition has been indicated by the civil surgeon, the officer should not issue a Request for Evidence (RFE) and instead proceed with the adjudication.

If the officer is unable to determine whether the applicant has a Class A condition based on the other form sections, the officer should return the form to the applicant for corrective action. The RFE should be sent to the applicant directing him or her to return to the civil surgeon to correct the form.

B. Changes to the Summary Findings

The Technical Instructions direct civil surgeons to treat Class A communicable diseases of public health significance or refer the applicant for treatment. Generally, the civil surgeon can only sign off upon completion of the treatment. This is why the officer may encounter a summary finding that has been reclassified from a “Class A condition” to a “Class B” or “No Class A or Class B” condition.

The officer should not reject the form because of the reclassification as long as the information is consistent with the information otherwise provided in the medical examination documentation. In such cases, the applicant is not inadmissible on health-related grounds.

For example, a civil surgeon may initially annotate the summary section with a Class A condition but, following treatment, change the annotation to a Class B condition. In this instance, the summary section may indicate an earlier Class A condition, followed by a later Class B determination. Since the civil surgeon indicated on the Form I-693 that a former Class A condition is now a Class B condition, the applicant is not inadmissible on health-related grounds.

Chapter 6 - Communicable Diseases of Public Health Significance

A. Communicable Diseases

Applicants who have communicable diseases of public health significance are inadmissible. [1] See INA 212(a)(1)(A)(i). The Department of Health and Human Services (HHS) has designated the following conditions as communicable diseases of public health significance that apply to immigration medical examinations conducted in the United States: [2] See 42 CFR 34.2(b) .

Gonorrhea;

Leprosy, infectious;

Syphilis, infectious stage; and

Tuberculosis (TB), Active—Only a Class A TB diagnosis renders an applicant inadmissible to the United States. Under current Centers for Disease Control and Prevention (CDC) guidelines, Class A TB means TB that is clinically active and communicable.

What qualifies as a communicable disease of public health significance is determined by HHS, not by USCIS. Any regulatory updates HHS makes to its list of communicable diseases of public health significance are controlling over the list provided in this Part B.

1. Additional Communicable Diseases for Applicants Abroad

HHS regulations also list two additional general categories of communicable diseases of public health significance. [3] See 42 CFR 34.2(b)(2) and 42 CFR 34.2(b)(3). Currently, these provisions only apply to applicants outside the United States who have to be examined by panel physicians: [4] An officer will not encounter such annotations on Form I-693, but may on the DS-2053/DS-2054.

Communicable diseases that may make a person subject to quarantine, as listed in a Presidential Executive Order, as provided under Section 361(b) of the Public Health Service Act. [5] See Pub. L. 78-410, 58 Stat. 682, 703 (July 1, 1944), as amended, codified at 42 U.S.C. Chapter 6A. The current revised list of quarantinable communicable diseases is available at http://www.cdc.gov and http://www.archives.gov/federal-register.

Communicable diseases that may pose a public health emergency of international concern if they meet one or more of the factors listed in 42 CFR 34.3(d) and for which the Director of the CDC has determined that (A) a threat exists for importation into the United States, and (B) such disease may potentially affect the health of the American public. The determination will be made consistent with criteria established in Annex 2 of the revised International Health Regulations. HHS/CDC's determinations will be announced by notice in the Federal Register.

2. Human Immunodeficiency Virus (HIV)

As of January 4, 2010, human immunodeficiency virus (HIV) infection is no longer defined as a communicable disease of public health significance according to HHS regulations. [6] See the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, Pub. L. 110-293 (July 30, 2008). See 42 CFR 34.2(b) as amended by 74 FR 56547 (Nov. 2, 2009). Therefore, HIV infection does not make the applicant inadmissible on health-related grounds for any immigration benefit adjudicated on or after January 4, 2010, even if the applicant filed the immigration benefit application before January 4, 2010.

The officer should disregard a diagnosis of HIV infection when determining whether an applicant is inadmissible on health-related grounds. The officer should administratively close any HIV waiver application filed before January 4, 2010.

B. Parts of Form I-693 Addressing Communicable Diseases

1. Tuberculosis

An initial screening test, either a Tuberculin Skin Test (TST) or an equivalent test for showing an immune response to Mycobacterium tuberculosis antigens, [7] See the Technical Instructions for acceptable tests. is required for all applicants 2 years of age or older. According to the Technical Instructions, applicants under 2 years of age are required to undergo an initial screening test if there is evidence of contact with an applicant known to have TB or there is another reason to suspect TB. For more information, please see the TB Component of the Technical Instructions.

The “testing age” is the applicant’s age on the date the civil surgeon completed the medical examination by signing the form, not the age at the time of the adjudication. An officer should not send a Request for Evidence (RFE) for testing if the applicant was properly exempt from the testing requirement due to age at the time of the medical examination. The officer, however, may always require testing if evidence indicates the applicant may have been exposed to TB since the examination.

The initial screening test results must be recorded. If the initial screening test was not administered, the exceptions should be clearly annotated in the remarks portion after the “not administered” box in the testing section. The officer should be aware that anyone who previously received the Bacille Calmette-Guérin vaccine [8] Often referred to as the “BCG” vaccine. BCG vaccine is a tuberculosis vaccination that is administered in many countries outside of the United States, especially those with a high TB rate. For more information, please see CDC’s website at www.cdc.gov. must still undergo an initial TB screening test. These applicants are not exempt from the initial screening test.

The civil surgeon must also annotate the “Initial Screening Test Result and Chest X-Ray Determination” section. If the section indicates that the applicant is medically cleared relating to TB, then no further TB tests are required. In this case, the X-ray section should be left blank.

If a chest X-ray is required, the chest X-ray section must be completed. If the chest X-ray is suggestive of active TB disease, the applicant must be referred to the health department for further assessment and possible treatment. [9] Under the new Technical Instructions, among other assessments, sputum cultures are required for applicants with chest X-ray findings suggestive of active TB diseases. Drug susceptibility testing is required for positive cultures results. These tests can take months to complete. Also, a referral to the health department and the TB treatment can take months. Officers, applicants, and their representatives should be aware that it can take a long time, and that the civil surgeon is not permitted to sign the Form I-693 until after follow-up assessments and treatment have been completed. The civil surgeon cannot sign off on the Form I-693 until any required steps relating to TB have been completed.

Under the Technical Instructions, a pregnant applicant can defer the chest X-ray until after pregnancy but the civil surgeon may not submit the form until the chest X-ray has been performed, interpreted, and the appropriate follow-up, if required under the Technical Instructions, is completed. If the officer receives an incomplete medical examination for a pregnant applicant, the officer should return the original form to the applicant for corrective action according to established local procedures.

Class A TB requires a referral to the TB Control Program of the Health Department for evaluation and the completion of TB treatment before the civil surgeon can sign off on the form. In this case, the referral evaluation section must be completed and evidence of treatment must accompany the form. If not, the officer should RFE for corrective action.

All Class B TB (other than Class B, latent TB) requires a referral to the Health Department for follow-up assessment before the civil surgeon can sign off on the form. In this case, the referral evaluation section must be completed. If not, the officer should RFE for corrective action.

For applicants identified with Class B, latent TB, a referral to the Health Department is only recommended under the Technical Instructions. A referral is not required and that section does not have to be completed in this case. Therefore, the officer may accept Form I-693 without the referral evaluation section being completed and should not RFE.

Determining whether a referral is required is detailed in the TB Technical Instructions. [10] Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/tuberculosis-civil-technical-instructions.html.

2. Syphilis and Other Communicable Diseases

Serological testing for syphilis is required for applicants 15 years of age or older. Applicants under 15 years may be tested by the civil surgeon if illness is suspected. The testing age is the age on the date the civil surgeon completed the medical examination and signed the form, not the age at the time of the adjudication of the adjustment application.

The civil surgeon must complete all “Findings” boxes for all categories. The civil surgeon may add explanatory remarks; however, the officer should not RFE simply because there are no remarks. Note that versions of Form I-693 prior to the October 14, 2009 version may not have had boxes for “No Class A or B Condition” for some of these entries. In this case, the adjudicator should accept the finding reflected in the Summary Findings section of the form for the admissibility determination.

Footnotes

1.

See INA 212(a)(1)(A)(i).

 

2.

See 42 CFR 34.2(b) .

 

3.

See 42 CFR 34.2(b)(2) and 42 CFR 34.2(b)(3).

 

4.

An officer will not encounter such annotations on Form I-693, but may on the DS-2053/DS-2054.

 

5.

See Pub. L. 78-410, 58 Stat. 682, 703 (July 1, 1944), as amended, codified at 42 U.S.C. Chapter 6A. The current revised list of quarantinable communicable diseases is available at http://www.cdc.gov and http://www.archives.gov/federal-register.

 

6.

See the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, Pub. L. 110-293 (July 30, 2008). See 42 CFR 34.2(b) as amended by 74 FR 56547 (Nov. 2, 2009).

 

7.

See the Technical Instructions for acceptable tests.

 

8.

Often referred to as the “BCG” vaccine. BCG vaccine is a tuberculosis vaccination that is administered in many countries outside of the United States, especially those with a high TB rate. For more information, please see CDC’s website at www.cdc.gov.

 

9.

Under the new Technical Instructions, among other assessments, sputum cultures are required for applicants with chest X-ray findings suggestive of active TB diseases. Drug susceptibility testing is required for positive cultures results. These tests can take months to complete. Also, a referral to the health department and the TB treatment can take months. Officers, applicants, and their representatives should be aware that it can take a long time, and that the civil surgeon is not permitted to sign the Form I-693 until after follow-up assessments and treatment have been completed.

 

10.

Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/tuberculosis-civil-technical-instructions.html.

 

Chapter 7 - Physical or Mental Disorder with Associated Harmful Behavior

A. Physical or Mental Disorders with Associated Harmful Behavior [1] See 42 CFR 34.2(n) (mental disorder). See 42 CFR 34.2(p) (physical disorder).

Applicants who have physical or mental disorders and harmful behavior associated with those disorders are inadmissible. [2] See INA 212(a)(2)(A)(iii). The inadmissibility ground is divided into two subcategories:

Current physical or mental disorders, with associated harmful behavior.

Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

There must be both a physical or mental disorder and harmful behavior to make an applicant inadmissible based on this ground. Neither harmful behavior nor a physical or mental disorder alone renders an applicant inadmissible on this ground. Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.

A physical disorder is a currently accepted medical diagnosis as defined by the current edition of the Manual of International Classification of Diseases, Injuries, and Causes of Death published by the World Health Organization or by another authoritative source as determined by the Director. [3] HHS regulations define Director as the director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g). Officers should consult the Technical Instructions for additional information, if needed.

A mental disorder is a currently accepted psychiatric diagnosis, as defined by the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or by another authoritative source as determined by the Director. [4] HHS regulations define Director as the director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g). Officers should consult the Technical Instructions for additional information, if needed.

Under the Technical Instructions, a diagnosis of substance abuse/addiction for a substance that is not listed in Section 202 of the Controlled Substances Act (with current associated harmful behavior or a history of associated harmful behavior judged likely to recur) is classified as a mental disorder. [5] See Title II of Pub. L. 91-513, 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq.

Under prior Technical Instructions and the July 20, 2010 or older versions of the form, these conditions were summarized under the drug abuse/addiction part of the form. An officer, however, should not find an applicant inadmissible for “drug abuse/addiction” if a non-controlled substance is involved.

B. Relevance of Alcohol-Related Driving Arrests or Convictions

1. Alcohol Use and Driving

Alcohol is not listed in Section 202 of the Controlled Substances Act. [6] See Title II of Pub. L. 91-513, 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq. Therefore, alcohol use disorders are treated as a physical or mental disorder for purposes of determining inadmissibility. As a result, an applicant with an alcohol use disorder will not be deemed inadmissible unless there is current associated harmful behavior or past associated harmful behavior likely to recur. The harmful behavior must be such that it poses, has posed, or is likely to pose a threat to the property, safety, or welfare of the applicant or others.

In the course of adjudicating benefit applications, officers frequently encounter criminal histories that include arrests and/or convictions for alcohol-related driving incidents, such as DUI (driving under the influence) and DWI (driving while intoxicated). These histories may or may not rise to the level of a criminal ground of inadmissibility. [7] See INA 212(a)(2). A record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute evidence of a health-related inadmissibility as a physical or mental disorder with associated harmful behavior.

Operating a motor vehicle under the influence of alcohol is clearly an associated harmful behavior that poses a threat to the property, safety, or welfare of the applicant or others. Where a civil surgeon’s mental status evaluation diagnoses the presence of an alcohol use disorder (abuse or dependence), and where there is evidence of harmful behavior associated with the disorder, a Class A medical condition should be certified on Form I-693.

2. Re-Examinations

Requesting Re-Examinations

Some applicants may fail to report, or may underreport, alcohol-related driving incidents in response to the civil surgeon’s queries. Where these incidents resulted in an arrest, they may be subsequently revealed in the criminal history record resulting from a routine fingerprint check. Consequently, a criminal record printout revealing a significant history of alcohol-related driving arrests may conflict with the medical examination report that indicates no alcohol-related driving incidents were reported to or evaluated by the civil surgeon.

In such an instance, an officer may require the applicant to be re-examined. The re-examination would be limited to a mental status evaluation specifically considering the record of alcohol-related driving incidents. On the Request for Evidence (RFE), officers should use the following language: “Please return to the civil surgeon for purposes of conducting a mental status evaluation specifically considering the record of alcohol-related driving incidents.”

Upon re-examination, the civil surgeon may refer the applicant for further evaluation to a psychiatrist or to a specialist in substance-abuse disorders as provided for under the Technical Instructions. After such referral, the civil surgeon will determine whether a Class A medical condition exists and amend the Form I-693 accordingly. The determination of a Class A condition is wholly dependent on the medical diagnosis of a designated civil surgeon.

Re-Examination for Significant Criminal Record of Alcohol-Related Driving Incidents

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.

The actual criminal charges for alcohol-related driving incidents vary among the different states. A significant criminal record of alcohol-related driving incidents includes:

One or more arrests/convictions for alcohol-related driving incidents (DUI/DWI) while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident(s).

One or more arrests/convictions for alcohol-related driving incidents where personal injury or death resulted from the incident(s).

One or more convictions for alcohol-related driving incidents where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.

One arrest/conviction for alcohol-related driving incidents within the preceding 5 years. [8] See CDC’s Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

Two or more arrests/convictions for alcohol-related driving incidents within the preceding 10 years. [9] See CDC’s Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

If the officer finds that the criminal record appears to contradict the civil surgeon’s finding in the medical examination report, then the officer should request a re-examination.

Example: An applicant’s criminal record shows that she was convicted for DWI-related vehicular manslaughter. However, the medical examination report reflects that no Class A or B physical or mental disorder was found. In this case, the officer should request a re-examination because the medical examination report finding should have reflected that the applicant has a history relating to an alcohol-related driving incident that could indicate a physical or mental disorder with associated harmful behavior.

3. Determination Based on Re-Examination

Upon completion of the re-examination, the officer should determine whether the applicant is inadmissible. If the civil surgeon annotated a Class A condition, the applicant is inadmissible. If no Class A condition is certified by the civil surgeon, the officer may not determine that the applicant is inadmissible. In exceptional cases, the officer may seek review of the civil surgeon’s determination from CDC.

If the applicant is inadmissible, he or she may file an application for waiver of inadmissibility. [10] See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more on waivers.

C. Relevance of Other Evidence

The guidance relating to alcohol-related driving arrests or convictions described above applies to any similar scenario where the record of proceeding contains evidence that may indicate inadmissibility due to a mental or physical disorder with associated harmful behavior that was not considered by the civil surgeon in the original medical examination. Such evidence includes, but is not limited to:

A prior finding of inadmissibility due to a mental disorder.

A history of institutionalization for a mental disorder.

A criminal history other than drunk driving arrests/convictions, such as assaults and domestic violence, in which alcohol or a psychoactive substance was a contributing factor.

Any other evidence that suggests an alcohol problem.

Other criminal arrests where there is a reasonable possibility of a mental disorder as a contributing factor.

Accordingly, where the record of proceeding available to the officer contains evidence suggestive of a mental disorder, and the Form I-693 medical report does not reflect that the evidence was considered by the civil surgeon, the applicant must be required to undergo a mental status re-examination by a civil surgeon specifically addressing the adverse evidence that may not have initially been revealed to the civil surgeon.

D. Parts of Form I-693 Addressing Physical or Mental Disorders

The civil surgeon must check the appropriate findings box on the medical examination report. The civil surgeon should also either annotate the findings in the remarks section or attach a report, if the space provided is not sufficient. However, the officer should not RFE simply because the civil surgeon has omitted the remarks or failed to attach a report.

Footnotes

1.

See 42 CFR 34.2(n) (mental disorder). See 42 CFR 34.2(p) (physical disorder).

 

2.

See INA 212(a)(2)(A)(iii).

 

3.

HHS regulations define Director as the director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g).

 

4.

HHS regulations define Director as the director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g).

 

5.

See Title II of Pub. L. 91-513, 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq.

 

6.

See Title II of Pub. L. 91-513, 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq.

 

7.

See INA 212(a)(2).

 

8.

See CDC’s Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

 

9.

See CDC’s Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

 

10.

See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more on waivers.

 

Chapter 8 - Drug Abuse or Drug Addiction

A. Drug Abuse or Drug Addiction

Applicants who are found to be drug abusers or addicts are inadmissible. [1] See INA 212(a)(1)(A)(iv). Drug abuse and drug addiction are current substance-use disorders or substance-induced disorders of a controlled substance listed in Section 202 of the Controlled Substances Act, as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association or by another authoritative source as determined by the Director. [2] See Title II of Pub. L. 91-513, 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq. See 42 CFR 34.2(h) (drug abuse). See 42 CFR 34.2(i) (drug addiction). HHS regulations define Director as the Director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g).

In 2010, the Centers for Disease Control and Prevention (CDC) changed the Technical Instructions on how a civil surgeon determines whether an applicant is a drug abuser or drug addict. [3] See CDC’s Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html. The civil surgeon must now make this determination according to the DSM as specified in the Technical Instructions. [4] The DSM is a publication of the American Psychiatric Association. Considerations that were relevant under previous Technical Instructions, such as a pattern of abuse or a history of experimental use of drugs, no longer play a direct role in the admissibility determination; they are now only considered as one of the elements under the DSM assessment. The assessment under the DSM is complicated. For more information, please see the Technical Instructions.

If the applicant is classified as a drug abuser or addict, the applicant can apply again for an immigration benefit if his or her drug abuse or addiction is in remission. Remission is now defined by DSM criteria, and no longer by a set timeframe as it was under previous Technical Instructions. [5] Under the pre-2010 Technical Instructions, an applicant’s substance abuse or addiction was in remission if the applicant had not engaged in non-medical use of a controlled substance within the past 3 years, or non-medical use of a non-controlled substance within the past 2 years. In order for an applicant’s drug abuse or addiction to be classified as in remission, the applicant must return to a civil surgeon for a new assessment.

If the officer has reason to question the completeness or accuracy of the medical examination report, the officer should ask CDC to review the medical report before sending a Request for Evidence (RFE).

Most applicants who are found to be drug abusers or addicts are ineligible for a waiver; the availability depends, however, on the immigration benefit the applicant seeks. [6] See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more on waivers.

B. Part of Form I-693 Addressing Drug Abuse or Drug Addiction

The civil surgeon must check the appropriate findings box on the medical examination report. The civil surgeon should also either annotate the findings in the remarks section or attach a report, if the space provided is not sufficient. However, the officer should not RFE simply because the civil surgeon has omitted the remarks or failed to attach a report.

C. Request for CDC Advisory Opinion

If an officer has a case where there is a question concerning the diagnosis and/or classification made by the civil surgeon or panel physician, the officer may forward the pertinent documents to CDC and request an advisory opinion.

The request should include a cover letter indicating the request and reason(s) for the request.

The request should include the following documents:

A copy of the medical examination documentation (Form I-693 or Form DS-2053/DS-2054, and its related worksheets);

A copy of the provided medical report(s) detailing the medical condition for which the advisory opinion is being requested; and

Copies of all other relevant medical reports, laboratory results, and evaluations connected to the medical condition.

The documents should be mailed to the following address:

Centers for Disease Control and Prevention

Division of Global Migration and Quarantine

1600 Clifton Road, Mailstop E 03

Atlanta, GA 30333

Attention: Quality Assessment Program (QAP)/Advisory Opinion

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)/Advisory Opinion, 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 a cdcqap@cdc.gov, advising that an expedited request was sent via fax.

Once the documents are received by CDC, the documents are reviewed and CDC will forward a response letter with results of the review to the requesting USCIS office. Only CDC’s response is provided to the requesting USCIS office.

CDC’s usual processing time for review and response back to the requesting USCIS office is approximately 4 weeks.

Upon receipt, the officer should review CDC’s response letter to determine next steps.

Footnotes

1.

See INA 212(a)(1)(A)(iv).

 

2.

See Title II of Pub. L. 91-513, 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq. See 42 CFR 34.2(h) (drug abuse). See 42 CFR 34.2(i) (drug addiction). HHS regulations define Director as the Director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g).

 

3.

See CDC’s Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

 

4.

The DSM is a publication of the American Psychiatric Association. Considerations that were relevant under previous Technical Instructions, such as a pattern of abuse or a history of experimental use of drugs, no longer play a direct role in the admissibility determination; they are now only considered as one of the elements under the DSM assessment. The assessment under the DSM is complicated. For more information, please see the Technical Instructions.

 

5.

Under the pre-2010 Technical Instructions, an applicant’s substance abuse or addiction was in remission if the applicant had not engaged in non-medical use of a controlled substance within the past 3 years, or non-medical use of a non-controlled substance within the past 2 years.

 

6.

See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more on waivers.

 

Chapter 9 - Vaccination Requirement

A. Vaccination Requirements for Immigrants

Some vaccines are expressly required by statute. Others are required because the Centers for Disease Control and Prevention (CDC) have determined they are in the interest of public health. [1] Effective December 14, 2009, CDC changed its methods on how to assess which vaccines should be required for immigration purposes. This led to changes in the list of required vaccines; some that were required prior to 2009 are no longer required since December 14, 2009.

The Immigration and Nationality Act (INA) [2] See INA 212(a)(1)(A)(ii). specifies the following vaccinations:

Mumps, measles, rubella;

Polio;

Tetanus and diphtheria toxoids; [3] Applicants who have completed the initial DTP/DTaP/DT or Td/Tdap series should receive a Td/Tdap booster shot every 10 years. If the last dose was received more than 10 years ago, the applicant is required to have the booster shot, otherwise the applicant is inadmissible under INA 212(a)(1)(A)(ii).

Pertussis;

Haemophilius influenza type B; and

Hepatitis B.

CDC requires the following additional vaccines for immigration purposes:

Varicella;

Influenza;

Pneumococcal pneumonia;

Rotavirus;

Hepatitis A; and

Meningococcal.

If the applicant has not received any of the listed vaccinations and the vaccinations are age appropriate and medically appropriate, the applicant has a Class A condition and is inadmissible. Generally, all age appropriate vaccine rows of the vaccination assessment must have at least one entry before the assessment can be considered to have been properly completed.

B. Blanket Waiver if Vaccine is “Not Medically Appropriate”

1. Definition of “Not Medically Appropriate”

The term “not medically appropriate” applies to:

Vaccinations that are not required based on the applicant’s age at the time of the medical exam (“not age appropriate”); [4] See Section D, Vaccination Chart [8 USCIS-PM B.9(D)] for more information.

Vaccinations that cannot be administered on account of a medical contraindication (“contraindication”);

A contraindication is a condition in a recipient which is likely to result in a life-threatening problem if the vaccine is given.

Examples of contraindications include a severe allergic reaction to a vaccination that was previously given, or pregnancy.

Vaccinations that are administered as a series in intervals, but there is insufficient time to complete the entire vaccination series at the time of the medical examination (“insufficient time interval”); [5] In these cases, the civil surgeon will administer the dose due at the time of the medical examination and mark on the form that there is not sufficient time to complete the entire vaccination series (insufficient time interval). or

The influenza vaccine if it is not the flu season, or if the vaccine for the specific flu strain missing is no longer available (“not flu season”).

If receiving the vaccine is not medically appropriate, the civil surgeon should indicate this medical finding on the Form I-693 in the appropriate boxes. USCIS will then waive that vaccine(s). [6] See INA 212(g)(2)(B). A separate waiver application is not required for an officer to grant a waiver of the vaccination requirement as “not medically appropriate.”

The officer should generally accept a finding by the civil surgeon that a vaccine is not medically appropriate unless that finding is clearly wrong. For example, if a vaccine was age appropriate at the time of the medical exam based on the vaccination chart, [7] See Section D, Vaccination Chart. [8 USCIS-PM B.9(D)]. but the civil surgeon marked that the vaccine is not medically appropriate because it is not age appropriate, then it is clear that the civil surgeon’s mark is incorrect. The same is true for a finding that a vaccine is not medically appropriate because it is not flu season; the officer should be able to clearly see whether the finding is correct based on the date of the medical examination.

An officer, however, should usually defer to a civil surgeon’s finding that a vaccine is not medically appropriate because of a contraindication. This is because such a finding involves medical judgment.

As indicated in the previous section, generally all age appropriate vaccine rows of the vaccination assessment must have at least one entry before the assessment can be considered to have been properly completed. However, if the officer can see from the record that the age appropriate vaccine was not required because, for instance, “it is not the flu season” but the civil surgeon failed to mark this on the vaccination assessment, then the officer may grant a blanket waiver despite the omission. In such cases, the officer should annotate in the “For USCIS Use Only” Remarks box in the vaccination record that a blanket waiver was granted.

2. Pregnancy or an Immuno-Compromised Condition [8] Immuno-compromised condition refers to a medical state that does not allow the body to fight off infection.

Some vaccines are, in general, not medically appropriate during pregnancy. These vaccines will likely be marked as contraindicated on Form I-693 if the applicant was pregnant at the time of the medical examination. [9] See CDC’s Vaccination Technical Instructions for a list of the specific vaccines not medically appropriate during pregnancy, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technical-instructions.html.

The civil surgeon may annotate in the remarks section that the applicant did not receive one or more vaccines because of a contraindication that is based on pregnancy or a condition other than pregnancy. The reason for the contraindication may be annotated by the civil surgeon on the Form I-693; however, if it is omitted, the officer does not need to issue a Request for Evidence (RFE) solely for that omission as long as the contraindication is marked in the vaccine chart.

An officer should also never issue an RFE for additional vaccines if the applicant is no longer pregnant at the time of the adjudication of the adjustment of status. As long as the vaccination assessment was properly completed by the civil surgeon at the time of the examination, the vaccination assessment can be accepted. In other words, if a woman did not receive certain required vaccines because she was pregnant at the time of the medical examination, and the contraindication box is marked by the civil surgeon, the applicant is not required to get those vaccines later at the time of the adjudication.

Likewise, some vaccines are not medically appropriate for applicants who have an immuno-compromised condition (such as HIV/AIDS or a weakened immune system because of taking certain medications) and may be marked by the civil surgeon as contraindicated. [10] See CDC’s Vaccination Technical Instructions for a list of the specific vaccines not medically appropriate for immuno-compromised persons, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technical-instructions.html.

In the case of an immuno-compromised person, the officer should never issue an RFE for additional vaccines even if, at the time of the adjudication of adjustment of status, the applicant is no longer immuno-compromised. As long as the vaccination assessment was properly completed at the time of the examination by the civil surgeon, the vaccination assessment can be accepted. The applicant should not be required to get the missing vaccines later at the time of the adjudication.

3. Blanket Waiver due to Nationwide Vaccination Shortage

USCIS will grant a blanket waiver only in the case of a vaccination shortage if CDC recommends that USCIS should do so based on CDC’s assessment that there is a nationwide shortage.

An officer may only grant a blanket waiver for a vaccine based on a vaccination shortage if the following circumstances are met:

CDC declares that there is a nationwide vaccination shortage, and issues the appropriate statement on its website for civil surgeons;

USCIS issues the appropriate statement on uscis.gov; and

The civil surgeon annotates the medical examination form in compliance with any additional requirements specified by CDC or USCIS.

The grant of this blanket waiver does not differ from the grant of other blanket waivers.

4. Vaccines Not Routinely Available Abroad

“National vaccination shortage” principles do not apply overseas. In the context of overseas vaccinations, the term panel physicians use to indicate the unavailability of a vaccine is “not routinely available.” Therefore, if the adjustment applicant is permitted to use the vaccination assessment completed overseas, [11] See Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3] for more information on applicants who may use the vaccination assessment completed overseas for adjustment purposes. then officers should not find the applicant inadmissible solely based on the lack of the vaccine(s) that is “not routinely available.” Officers should also not issue an RFE for corrective action. USCIS will grant a blanket waiver in these cases.

C. Adjudication Steps

Vaccination Requirement: Adjudication Steps

Step 1

Determine which vaccination(s) were age appropriate for the applicant to receive based on the applicant’s age on the date the medical exam was completed. [12] See Section D, Vaccination Chart [8 USCIS-PM B.9(D)] for a chart of vaccine requirements by age.

Step 2

Verify that any vaccine that was required (age appropriate) [13] Since the applicant was not required to receive non-age appropriate vaccines at the time of the medical exam, the officer does not need to review these vaccine rows at the time of adjudication. as of the date of the medical exam is marked as:

Received by the applicant; or

“Not medically appropriate” because of contraindication, inappropriate time interval, or not flu season.

Step 3

If the required (age appropriate) vaccinations were not received or not marked as “not medically appropriate” as of the date the medical exam was completed, determine whether the missing vaccinations would still be required as of the date of adjudication.

Vaccinations missing at the time of the medical exam may no longer be required as of the date of adjudication if, for example, the applicant has aged out, or it is not the flu season, or a vaccine is no longer required by law.

Step 4

If the missing vaccinations are no longer required as of the date of the adjudication, the vaccination requirements have been met.

Step 5

If the missing vaccinations would still be required, the officer should send an RFE for an updated Form I-693 showing the applicant has received those vaccinations.

D. Vaccination Chart

CDC’s most updated vaccination table for civil surgeons can be located through the following link: Vaccination Chart in Technical Instructions.

USCIS officers should rely on the following chart to determine inadmissibility based on failure to meet the vaccination requirements. This chart is specifically made for USCIS and is updated as of January 28, 2014.

The chart is not intended to be used by civil surgeons.

Vaccination Chart

Age of Applicant

Age Appropriate Vaccinations
​(Required for Immigration Purposes)

Birth through 5 weeks

Hepatitis B

6 weeks through 7 weeks

Hepatitis B

Rotavirus

2 months through 5 months

DT, DTP, or DTaP

IPV or OPV (Note: OPV not administered in U.S.)

Hib

Hepatitis B

Pneumococcal (for PCV)

Rotavirus

6 months through 7 months

DT, DTP, or DTaP

IPV or OPV (Note: OPV not administered in U.S.)

Hib

Hepatitis B

Pneumococcal (for PCV)

Influenza (during flu season only; Oct. 1 thru Mar. 31)

Rotavirus

8 months through 11 months

DT, DTP, or DTaP

IPV or OPV (Note: OPV not administered in U.S.)

Hib

Hepatitis B

Pneumococcal (for PCV)

Influenza (during flu season only; Oct. 1 thru Mar. 31)

12 months through 23 months

DT, DTP, or DTaP

IPV or OPV (Note: OPV not administered in U.S.)

MMR

Hib

Hepatitis B

Varicella

Pneumococcal (for PCV)

Influenza (during flu season only; Oct. 1 thru Mar. 31)

Hepatitis A

2 years through 4 years

DT, DTP, or DTaP

IPV or OPV (Note: OPV not administered in U.S.)

MMR

Hib

Hepatitis B

Varicella

Pneumococcal (for PCV)

Influenza (during flu season only; Oct. 1 thru Mar. 31)

5 years through 6 years

DT, DTP, or DTaP

IPV or OPV (Note: OPV not administered in U.S.)

MMR

Hepatitis B

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

7 years through 10 years

Td or Tdap

IPV or OPV (Note: OPV not administered in U.S.)

MMR

Hepatitis B

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

11 years through 17 years

Td or Tdap

IPV or OPV (Note: OPV not administered in U.S.)

MMR

Hepatitis B

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

Meningococcal

18 years

Td or Tdap

MMR

Hepatitis B

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

Meningococcal

19 years through 49 years

Td or Tdap

MMR

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

50 years through 59 years

Td or Tdap

MMR (if born in 1957 or later)

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

60 years through 64 years

Td or Tdap

Varicella

Influenza (during flu season only; Oct. 1 thru Mar. 31)

65 years and older

Td

Varicella

Pneumococcal (for PPV)

Influenza (during flu season only; Oct. 1 thru Mar. 31)

E. Special Vaccination Considerations

Additionally, officers should pay special attention to the following developments.

1. Human Papillomavirus (HPV) Vaccination

From August 1, 2008 through December 13, 2009, human papillomavirus (HPV) vaccination was required for female applicants ages 11 years through 26 years. The requirement was eliminated on December 14, 2009, and affects any admissibility determination under INA 212(a)(1)(A)(ii) on that date or thereafter. Therefore, for adjudications taking place on or after December 14, 2009, officers should disregard any annotation of the HPV vaccine, or the lack thereof, on Form I-693 or U.S. Department of State’s Vaccination Documentation Worksheet (Form DS-3025), when determining whether the vaccination requirements are met.

2. Zoster Vaccination

From August 1, 2008 through December 13, 2009, the zoster vaccination was required for applicants ages 60 years or older unless the applicant had received the varicella vaccine.

The zoster vaccine, however, was not available in the United States due to a nationwide shortage from the time it became mandatory. Therefore, even though the vaccine was missing, the Form I-693 could be accepted if the physician was unable to obtain the vaccine.

On December 14, 2009, the zoster vaccine was removed from the list of required vaccines for immigration purposes, and the change affects any admissibility determination made on or after that date. Therefore, officers should disregard any annotation of the zoster vaccine, or the lack thereof, on any Form I-693 or U.S Department of State’s Vaccination Documentation Worksheet (Form DS-3025), when determining whether the vaccination requirements are met.

3. Influenza Vaccination

The flu vaccination is only available during the flu season. For purposes of Form I-693, the flu season commences annually on October 1 and runs through March 31.

Over time, CDC has changed the age category of applicants required to obtain the flu vaccine for immigration purposes. As of November 16, 2010, CDC’s Technical Instructions require that all applicants 6 months of age or older receive the flu vaccine during the flu season.

If an applicant was required to obtain the flu vaccine at the time of the medical examination (the date of the civil surgeon’s certification governs) but a flu vaccine annotation is missing, the officer should only issue an RFE if it is still the same flu season and if it is reasonable to expect that the applicant will be able to obtain the flu vaccine within the time frame of the RFE.

This accounts for the fact that the flu vaccine is strain-specific and only available for a limited time each year. The officer should not issue an RFE if the applicant will not be able to obtain the strain-specific flu vaccine that had been required at the time of the medical examination because:

It is no longer the same flu season; or

It is not the flu season at all.

4. Vaccination Requirements Prior to August 1, 2008

The following vaccines were NOT required prior to August 1, 2008: Hepatitis A, meningococcal, rotavirus, human papillomavirus (HPV), and zoster. [14] Please see information immediately above for the zoster and the HPV vaccine, since these vaccines have not been required since December 2009.

F. Completion of the Results Section by the Civil Surgeon

According to the Vaccination Component of the Technical Instructions, the civil surgeon should mark the appropriate results box at the bottom of the vaccination assessment chart. The Technical Instructions direct the civil surgeon to only check one appropriate box.

The officer should be aware that civil surgeons may improperly mark the boxes because they may misunderstand the meaning of these boxes. Therefore, the officer should determine, from the vaccination assessment completed by the civil surgeon, whether the applicant received all vaccines, which blanket waivers should be granted, and whether the applicant requires any other waivers. The officer should exercise discretion in reviewing the vaccination chart and when evaluating the results boxes at the bottom of the vaccination assessment chart.

If the civil surgeon did not check any result boxes, the officer should only return the form for corrective action if he or she is unable to ascertain whether the applicant is admissible. The officer should never alter or complete sections on the medical examination report that are the responsibility of the civil surgeon, such as the results boxes.

The results boxes and their meanings are described below (according to the Vaccination Component of the Technical Instructions).

Vaccination Record: Explanation of Results

Applicant may be eligible for blanket waiver(s) as indicated above

This box will usually be checked because some vaccines may not be age appropriate for the applicant, a vaccination series could not be completed, there was a contraindication, or because of any other condition noted in the “Not Medically Appropriate” heading.

Applicant will request an individual waiver based on religious or moral convictions

If an applicant objects to one of the vaccines based on religious or moral convictions, the "Applicant will request an individual waiver based on religious or moral convictions" box must be checked.

This is not a blanket waiver, and the applicant will have to submit a waiver request on Form I-601.

Even if the applicant otherwise requires a blanket waiver(s), the civil surgeon must check this box, and not the box titled “Applicants may be eligible for blanket waivers.” It may be, however, that the civil surgeon checks both boxes, in which case, the officer should just request the waiver documentation that establishes the religious or moral conviction.

Vaccine history complete for each vaccine, all requirements met

If the applicant has met the vaccination requirements, i.e., completed the series for all required vaccines, the "Vaccine history complete for each vaccine, all requirements met" box must be checked.

Applicant does not meet immunization requirements

If an applicant's vaccine history is incomplete and the applicant refuses administration of a single dose of any required vaccine that is medically appropriate for the applicant, the "Applicant does not meet immunization requirements" box must be checked.

If this box is checked, the applicant may be inadmissible. Depending on the case, the officer should ask for the reason through an RFE, Notice of Intent to Deny (NOID), or an interview.

If the applicant refused to be vaccinated on account of a religious or moral conviction, the officer should direct the applicant to file a waiver. If the applicant had no religious or moral reason for refusal, the applicant is inadmissible.

The officer should not return the assessment to the civil surgeon if he or she has enough information to determine health-related inadmissibility.

G. Exception for Certain Adopted Children

Some children are not subject to the vaccination requirement [15] Under INA 212(a)(1)(C), as amended by Section 2 of the International Adoption Simplification Act, Pub. L. 111-287, 124 Stat. 3058, 3058 (November 30, 2010). if all of the following conditions are met:

The child is 10 years of age or younger;

The child is classified as an orphan (IR3 or IR4) or a Hague Convention adoptee (IH3 or IH4); [16] See INA 101(b)(1)(F) and INA 101(b)(1)(G), respectively. and

The child is seeking an immigrant visa as an immediate relative. [17] Under INA 201(b); a child can either obtain an IR-3 or IR-4 immigrant visa as an immediate relative if the child is an “orphan” or an IH-3 or IH-4 immigrant visa if the child is a Hague Convention adoptee.

For the child to benefit from this exception, the adopting parent(s) must sign an affidavit prior to the immigrant visa issuance, affirming that the child will receive the required vaccination within 30 days of admission to the United States or at the earliest time that is medically appropriate. However, noncompliance with the vaccination requirements following the child's admission to the United States is not a ground for removal.

The Department of State has developed a standard affidavit form, Affidavit Concerning Exemption from Immigrant Vaccination Requirements for a Foreign Adopted Child (Form DS-1981), to ensure that adopting parents are aware of the possibility of an exception from the vaccination requirements and of their obligation to ensure that the child is vaccinated following admission. [18] The affidavit is made under oath or affirmation in the presence of either the consular officer or a notary public. The completed form must be submitted to the consulate as part of the immigrant visa application.

Only orphans or Convention adoptees whose adoptive or prospective adoptive parents have signed an affidavit will be exempt from the vaccination requirement. If the adopting parent(s) prefers that the child meet the vaccination requirement as part of the visa application process, the child may benefit from the waiver(s) for those vaccinations which the panel physician determines are medically inappropriate. [19] See INA 212(g)(2)(B). This waiver authority has been delegated to the Department of State and a consular officer can grant the waiver. Neither a form nor a fee is required.

When the adoptive or prospective adoptive parent cannot sign the affidavit in good faith because of religious or moral objections to vaccinations, the child will require a waiver. [20] When the waiver application is for a child, the child’s parent must satisfy the waiver requirements under INA 212(g)(2)(C). The waiver is filed by submitting an Application for Waiver of Grounds of Inadmissibility (Form I-601) along with the required fee. See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility, Chapter 3, Waiver of Immigrant Vaccination Requirement [9 USCIS-PM C.3] for more information on the requirements for vaccination waivers based on religious beliefs or moral objections.

Footnotes

1.

Effective December 14, 2009, CDC changed its methods on how to assess which vaccines should be required for immigration purposes. This led to changes in the list of required vaccines; some that were required prior to 2009 are no longer required since December 14, 2009.

 

2.

See INA 212(a)(1)(A)(ii).

 

3.

Applicants who have completed the initial DTP/DTaP/DT or Td/Tdap series should receive a Td/Tdap booster shot every 10 years. If the last dose was received more than 10 years ago, the applicant is required to have the booster shot, otherwise the applicant is inadmissible under INA 212(a)(1)(A)(ii).

 

4.

See Section D, Vaccination Chart [8 USCIS-PM B.9(D)] for more information.

 

5.

In these cases, the civil surgeon will administer the dose due at the time of the medical examination and mark on the form that there is not sufficient time to complete the entire vaccination series (insufficient time interval).

 

6.

See INA 212(g)(2)(B).

 

7.

See Section D, Vaccination Chart. [8 USCIS-PM B.9(D)].

 

8.

Immuno-compromised condition refers to a medical state that does not allow the body to fight off infection.

 

9.

See CDC’s Vaccination Technical Instructions for a list of the specific vaccines not medically appropriate during pregnancy, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technical-instructions.html.

 

10.

See CDC’s Vaccination Technical Instructions for a list of the specific vaccines not medically appropriate for immuno-compromised persons, available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technical-instructions.html.

 

11.

See Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3] for more information on applicants who may use the vaccination assessment completed overseas for adjustment purposes.

 

12.

See Section D, Vaccination Chart [8 USCIS-PM B.9(D)] for a chart of vaccine requirements by age.

 

13.

Since the applicant was not required to receive non-age appropriate vaccines at the time of the medical exam, the officer does not need to review these vaccine rows at the time of adjudication.

 

14.

Please see information immediately above for the zoster and the HPV vaccine, since these vaccines have not been required since December 2009.

 

15.

Under INA 212(a)(1)(C), as amended by Section 2 of the International Adoption Simplification Act, Pub. L. 111-287, 124 Stat. 3058, 3058 (November 30, 2010).

 

16.

See INA 101(b)(1)(F) and INA 101(b)(1)(G), respectively.

 

17.

Under INA 201(b); a child can either obtain an IR-3 or IR-4 immigrant visa as an immediate relative if the child is an “orphan” or an IH-3 or IH-4 immigrant visa if the child is a Hague Convention adoptee.

 

18.

The affidavit is made under oath or affirmation in the presence of either the consular officer or a notary public.

 

19.

See INA 212(g)(2)(B). This waiver authority has been delegated to the Department of State and a consular officer can grant the waiver. Neither a form nor a fee is required.

 

20.

When the waiver application is for a child, the child’s parent must satisfy the waiver requirements under INA 212(g)(2)(C). The waiver is filed by submitting an Application for Waiver of Grounds of Inadmissibility (Form I-601) along with the required fee. See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility, Chapter 3, Waiver of Immigrant Vaccination Requirement [9 USCIS-PM C.3] for more information on the requirements for vaccination waivers based on religious beliefs or moral objections. 

 

Chapter 10 - Other Medical Conditions

The civil surgeon should annotate any other medical condition the applicant may have, as directed by the Technical Instructions. A condition annotated in this section does not render the applicant inadmissible on health-related grounds of inadmissibility. However, it may impact other inadmissibility determinations.

Chapter 11 - Inadmissibility Determination

A. Civil Surgeon or Panel Physician Documentation

If a “Class A condition” is noted on the medical form, it is conclusive evidence that the applicant is inadmissible. The Class A annotation may also indicate that an applicant could be inadmissible on other grounds of inadmissibility. For example, “harmful behavior” associated with a physical or mental disorder, or illegal drug use, may have resulted in criminal convictions that make an applicant inadmissible under INA 212(a)(2). However, a criminal conviction should be supported by conviction records or similar evidence, and not just the medical examination report. [1] See Section D, Other Grounds of Inadmissibility [8 USCIS-PM B.11(D)] for more information.

If a civil surgeon or panel physician only annotates a “Class B condition” (per HHS regulations), the applicant is never inadmissible on health-related grounds. The officer should remember that if the civil surgeon or panel physician indicates on the Form I-693 that a former Class A condition is now a Class B condition, the applicant is no longer inadmissible. However, a Class B condition may indicate that the applicant could be inadmissible on other grounds because of the condition, such as public charge. [2] See Section D, Other Grounds of Inadmissibility [8 USCIS-PM B.11(D)] for more information.

The officer may encounter medical documentation that is not fully completed. In this case, the officer should issue a Request for Evidence (RFE). If the physician fails to properly complete the form in response to the RFE, the applicant has not established that he or she is clearly admissible to the United States. [3] See INA 291.

B. Applicant’s Declaration

If the applicant indicates that he or she may be inadmissible based on a medical reason, the officer must order a medical examination of the applicant. Based on the results of that medical exam, the officer should ascertain whether the applicant actually has a Class A, Class B, or no condition at all that is relevant to the applicant’s admissibility. The applicant should not be found inadmissible unless the medical examination confirms the presence of a Class A medical condition.

C. Other Information

Even if the civil surgeon or panel physician did not annotate a Class A or B condition in the medical documentation, or if the applicant was not required to undergo a medical examination, the officer may order or reorder an immigration medical examination at any time if he or she has concerns as to an applicant’s inadmissibility on health-related grounds.

The concern should be based on information in the A-file, information that is revealed by the applicant or another applicant during an interview, or information revealed during a background investigation.

D. Other Grounds of Inadmissibility

1. General Considerations

Where relevant, the information contained in the medical examination can be used to determine whether other grounds of inadmissibility may apply. For instance, health is one factor to consider when determining if someone is inadmissible on public charge grounds. This factor must, however, be considered in light of all other factors specified by law [4] See INA 212(a)(4)(B). and in standard public charge guidance. [5] Whether the person is likely to become a public charge is determined according to standard public charge guidance: Is it likely that the person will become primarily dependent on the Government for subsistence, as shown by (a) receipt of public cash assistance for income maintained or (b) long-term institutionalization at public expense? See 64 FR 28689 (Mar. 26, 1999).

2. Criminal Grounds

An applicant may be inadmissible on criminal grounds if he or she has admitted to committing certain controlled substance violations. [6] See INA 212(a)(2)(A). An applicant may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation.

USCIS does not consider this acknowledgement, in and of itself, a valid admission that would make an applicant inadmissible on criminal grounds. [7] A valid admission (absent a conviction) for purposes of criminal inadmissibility grounds “requires that the [foreign national] be given an adequate definition of the crime, including all essential elements, and that it be explained in understandable terms.” See Matter of K-, 7 I&N Dec. 594 (BIA 1957). However such an acknowledgment of drug use may open a line of questioning to determine criminal inadmissibility. USCIS officers should find that an applicant has made a valid “admission” of a crime only when the admission is made in accordance with the requirements outlined by the Board of Immigration Appeals. [8] See Matter of K-, 7 I&N Dec. 594 (BIA 1957). Even in the Ninth Circuit, USCIS officers should continue to follow Matter of K-, rather than Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). Following Matter of K- will ensure that any admission the person may make is a fully informed one.

E. Privacy Concerns

An officer should take great care to regard the privacy of the applicant. The officer should generally not discuss the applicant’s medical issues with applicants other than the applicant, his or her counsel, immigration officers, or other government officials [9] Such as the Centers for Disease Control and Prevention. who clearly have a need to know the information.

The officer should not directly contact a civil surgeon to discuss an applicant’s inadmissibility or medical issues. If the officer has any concerns that cannot be resolved by reviewing the evidence in the record, the officer should issue an RFE.

Footnotes

1.

See Section D, Other Grounds of Inadmissibility [8 USCIS-PM B.11(D)] for more information.

 

2.

See Section D, Other Grounds of Inadmissibility [8 USCIS-PM B.11(D)] for more information.

 

3.

See INA 291.

 

4.

See INA 212(a)(4)(B).

 

5.

Whether the person is likely to become a public charge is determined according to standard public charge guidance: Is it likely that the person will become primarily dependent on the Government for subsistence, as shown by (a) receipt of public cash assistance for income maintained or (b) long-term institutionalization at public expense? See 64 FR 28689 (Mar. 26, 1999).

 

6.

See INA 212(a)(2)(A).

 

7.

A valid admission (absent a conviction) for purposes of criminal inadmissibility grounds “requires that the [foreign national] be given an adequate definition of the crime, including all essential elements, and that it be explained in understandable terms.” See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

 

8.

See Matter of K-, 7 I&N Dec. 594 (BIA 1957). Even in the Ninth Circuit, USCIS officers should continue to follow Matter of K-, rather than Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). Following Matter of K- will ensure that any admission the person may make is a fully informed one.

 

9.

Such as the Centers for Disease Control and Prevention.

 

Chapter 12 - Waiver Authority

USCIS may provide waivers for some medical grounds of inadmissibility under INA 212(g) and other provisions governing the specific immigration benefit the applicant is seeking. In certain cases, applicants must file a waiver application [1] See Application for Waiver of Grounds of Inadmissibility (Form I-601), Application By Refugee for Waiver of Grounds of Excludability (Form I-602), or Application for Waiver of Grounds of Inadmissibility Under Section 245A or 210 of the Immigration and Nationality Act (Form I-690). either along with their Application to Register Permanent Residence or Adjust Status (Form I-485) and Report of Medical Examination and Vaccination Record (Form I-693) or in response to a Request for Evidence. [2] See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more information on waivers of medical grounds of inadmissibility.

Footnotes

1.

See Application for Waiver of Grounds of Inadmissibility (Form I-601), Application By Refugee for Waiver of Grounds of Excludability (Form I-602), or Application for Waiver of Grounds of Inadmissibility Under Section 245A or 210 of the Immigration and Nationality Act (Form I-690).

 

2.

See Volume 9, Waivers, Part C, Waivers for Health-Related Grounds of Inadmissibility [9 USCIS-PM C] for more information on waivers of medical grounds of inadmissibility.

 

Part C - Civil Surgeon Designation and Revocation

Chapter 1 - Purpose and Background

A. Purpose

USCIS designates eligible physicians as civil surgeons to perform medical examinations for immigration benefits applicants in the United States. [1] If a physician wishes to be designated, he or she submits an application to USCIS for designation. Civil Surgeons should be distinguished from panel physicians. Panel physicians are designated by the Department of State and provide immigration medical examinations required as part of an applicant’s visa processing at a U.S. Embassy or consulate abroad. See 42 CFR 34.2(o) and 22 CFR 42.66. See 9 FAM 302.2-3(E), Panel Physicians. Civil surgeons assess whether applicants have any health conditions that could result in exclusion from the United States.

Based on the results of the civil surgeon’s assessment, USCIS determines whether the applicant is admissible to the United States or whether the applicant is inadmissible based on health-related grounds of inadmissibility. The health-related grounds of inadmissibility [2] See INA 212(a)(1). and the medical examination of applicants are designed to protect the health of the United States population.

B. Background

The Immigration Act of 1882 [3] See 22 Stat. 214 (August 3, 1882). first granted the Secretary of the Treasury the authority to examine foreign nationals arriving in the United States to prohibit the entry of any “person unable to take care of himself or herself without becoming a public charge.” The Act provided that the examination be delegated to state commissions, boards, or officers.

The term “civil surgeon” was first introduced in the Immigration Act of 1891 as an alternative to surgeons of the Marine Hospital Service if such surgeons were not available to perform the medical examination on arriving aliens. [4] See Section 8 of the Immigration Act of 1891, 26 Stat. 1084, 1085 (March 3, 1891).

The Immigration and Nationality Act (INA) of 1952, as amended by the Homeland Security Act of 2002, [5] See Pub. L. 107-296, 116 Stat. 2135 (November 25, 2002). authorizes the Secretary of Homeland Security to designate civil surgeons if medical officers of the U.S. Public Health Service (USPHS) are not available. USCIS exercises the authority to designate civil surgeons on the Secretary’s behalf, and may designate as many or as few civil surgeons as needed. [6] See 8 CFR 232.2(b). Since USPHS medical officers are rarely available today, civil surgeons generally provide all immigration medical examinations required of foreign nationals in the United States.

The civil surgeon’s primary role is to perform immigration medical examinations to assess whether foreign nationals have any of the following medical conditions that could result in their inadmissibility:

Communicable disease of public health significance;

Failure to show proof of required vaccinations (for immigrant visa applicants and adjustment of status applicants only);

Physical or mental disorder with associated harmful behavior; and

Drug abuse or addiction. [7] See INA 212(a)(1).

Civil surgeons must perform such examinations according to the Technical Instructions for the Medical Examination of Aliens in the United States, issued by the Centers for Disease Control and Prevention (CDC), an agency of the Department of Health and Human Services (HHS).

The civil surgeon must also record the results of the immigration medical examination on the Report of Medical Examination and Vaccination Record (Form I-693) according to the form instructions. A foreign national submits the form to USCIS as part of his or her immigration benefits application, if required. USCIS reviews the form to determine whether the applicant is inadmissible based on health-related grounds.

C. Professional Qualifications

Only licensed physicians with at least four years of professional experience may be designated as civil surgeons. [8] See INA 232(b) and 8 CFR 232.2(b). USCIS interprets “not less than four years’ professional experience” to require four years of professional practice after completion of training. Based on consultations with CDC, USCIS has determined that internships and residences do not count toward the four-year professional experience because they are both part of a physician’s training. [9] A fellowship, however, would generally count toward professional experience since fellowships are not typically required as part of a physician’s training. Even if one is already licensed as a physician, the four-year period of professional practice only begins when the post-graduate training ends.

Therefore, to be eligible for civil surgeon designation, the physician must meet all of the following requirements:

Be either a Doctor of Medicine (M.D.) or a Doctor of Osteopathy (D.O.);

Be licensed to practice medicine without restrictions in the state in which he or she seeks to perform immigration medical examinations; and

Have the requisite four years of professional experience.

Registered nurses, nurse practitioners, medical technicians, physical therapists, physician assistants, chiropractors, podiatrists, and other healthcare workers who are not licensed as physicians (M.D. or D.O.) may not be designated or function as civil surgeons.

D. Responsibilities of Designated Civil Surgeons

Civil surgeon designation comes with a number of responsibilities. Physicians who fail to meet their responsibilities as a civil surgeon may have their designation revoked by USCIS. [10] See Chapter 4, Termination and Revocation [8 USCIS-PM C.4] for more information on revocation.

Civil surgeons’ responsibilities include: [11] See the Instructions to the Report of Medical Examination and Vaccination Record (Form I-693) and Application for Civil Surgeon Designation (Form I-910) for more information on these responsibilities.

Completing medical examinations according to HHS regulations and CDC requirements, such as the Technical Instructions for the Medical Examination of Aliens in the United States (Technical Instructions) and any updates posted on CDC’s website; [12] Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

Making referrals for treatment and filing case reports, as required by the Technical Instructions;

Reporting the results of the immigration medical examination on Form I-693 accurately;

Informing USCIS of any changes in contact information within 15 days of the change; [13] See www.uscis.gov/i-910 for more information on how to update contact information. and

Refraining from any activity related to the civil surgeon designation and medical examination of immigrants if USCIS revokes the physician’s civil surgeon designation. This includes the physician informing his or her patients seeking immigration medical examinations that the physician may no longer complete medical examinations.

E. Legal Authorities

INA 212(a)(1) – Health-related grounds

INA 232; 8 CFR 232 – Detention of aliens for physical and mental examination

42 U.S.C. 252 – Medical examination of aliens

42 CFR 34 – Medical examination of aliens

Technical Instructions for Civil Surgeons (Technical Instructions), and updates [14] Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

Footnotes

1.

If a physician wishes to be designated, he or she submits an application to USCIS for designation. Civil Surgeons should be distinguished from panel physicians. Panel physicians are designated by the Department of State and provide immigration medical examinations required as part of an applicant’s visa processing at a U.S. Embassy or consulate abroad. See 42 CFR 34.2(o) and 22 CFR 42.66. See 9 FAM 302.2-3(E), Panel Physicians.

 

2.

See INA 212(a)(1).

 

3.

See 22 Stat. 214 (August 3, 1882).

 

4.

See Section 8 of the Immigration Act of 1891, 26 Stat. 1084, 1085 (March 3, 1891).

 

5.

See Pub. L. 107-296, 116 Stat. 2135 (November 25, 2002).

 

6.

See 8 CFR 232.2(b).

 

7.

See INA 212(a)(1).

 

8.

See INA 232(b) and 8 CFR 232.2(b).

 

9.

A fellowship, however, would generally count toward professional experience since fellowships are not typically required as part of a physician’s training.

 

10.

See Chapter 4, Termination and Revocation [8 USCIS-PM C.4] for more information on revocation.

 

11.

See the Instructions to the Report of Medical Examination and Vaccination Record (Form I-693) and Application for Civil Surgeon Designation (Form I-910) for more information on these responsibilities.

 

12.

Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

 

13.

See www.uscis.gov/i-910 for more information on how to update contact information.

 

14.

Available online at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

 

Chapter 2 - Application for Civil Surgeon Designation

A. Background

Historically, civil surgeon designation was an informal process handled by USCIS District Directors. By regulation, USCIS District Directors are authorized to designate civil surgeons in their respective jurisdictions. [1] See 8 CFR 232.2. In some circumstances, District Directors had delegated the designation authority to Field Office Directors in their districts. Physicians submitted informal written requests for civil surgeon designation to the district or field office with jurisdiction, along with documentary evidence showing they meet the professional qualifications to be a civil surgeon.

As of March 11, 2014, USCIS replaced the informal, decentralized civil surgeon application process with a formal, centralized process by (a) requiring centralized filing of the Application for Civil Surgeon Designation (Form I-910), at a Lockbox facility, and (b) delegating the District Directors authority to grant, deny, and revoke civil surgeon designation to the Director of the National Benefits Center (NBC). [2] USCIS field offices continued to accept applications for civil surgeon designation until March 11, 2014. Federal regulations provide the authority for this transfer of authority: Director or district director prior to March 1, 2003, means the district director or regional service center director, unless otherwise specified. On or after March 1, 2003, pursuant to delegation from the Secretary of Homeland Security or any successive re-delegation, the terms mean, to the extent that authority has been delegated to such official: asylum office director; director, field operations; district director for interior enforcement; district director for services; field office director; service center director; or special agent in charge. The terms also mean such other official, including an official in an acting capacity, within U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or other component of the Department of Homeland Security who is delegated the function or authority above for a particular geographic district, region, or area. See 8 CFR 1.2. These changes were made to improve the application intake process, enhance case management, promote consistency and uniformity in decision-making, and improve the overall efficiency and integrity of the program.

B. Application

A physician generally must apply for civil surgeon designation with USCIS. However, physicians who qualify under a blanket designation are exempt from the filing and fee requirements. [3] See Chapter 3, Blanket Civil Surgeon Designation [8 USCIS-PM C.3] for more information.

USCIS will only accept [4] USCIS also has the authority to select as many (or as few) civil surgeons necessary to serve the needs of the jurisdiction. See 8 CFR 232.2(b). Therefore, USCIS may also reject complete applications if it determines the jurisdiction’s needs are met. In this case, USCIS would return the entire application package to the physician, including the fee associated with the application. and consider complete applications for civil surgeon designation; applications must be submitted in accordance with the form instructions. [5] Filing instructions can be found at www.uscis.gov/I-910.

A complete application consists of the following:

1. Application for Civil Surgeon Designation (Form I-910)

A physician seeking designation as a civil surgeon must complete all required parts of the Application for Civil Surgeon Designation. [6] The current version of the form and instructions can be accessed online at www.uscis.gov/i-910.

2. Filing Fee

The physician must include the required filing fee [7] See 8 CFR 103.7(b)(1)(i). The current filing fee can also be found at www.uscis.gov/i-910. with the completed Application for Civil Surgeon Designation. Applications for civil surgeon designation that do not include the correct filing fee will be rejected.

3. Evidence

The physician must include evidence that shows that he or she meets the eligibility requirements to be designated a civil surgeon. At a minimum, the civil surgeon applicant must submit all of the following evidence with the completed Application for Civil Surgeon Designation (Form I-910): [8] If not all of the required initial evidence has been submitted or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer may request additional evidence.

Proof of U.S. citizenship, legal status, or authorization to work in the United States;

A copy of the physician’s current medical license in the state in which he or she seeks to perform immigration medical examinations;

A copy of the physician’s medical degree verifying he or she is an M.D. or D.O.; and

Evidence to verify the requisite professional experience, such as letters of employment verification.

4. Signature

The physician must sign the application. [9] See 8 CFR 103.2(a)(2). The signature must be submitted to USCIS on Application for Civil Surgeon Designation (Form I-910). Applications for civil surgeon designation that do not include a signature may be rejected or returned to the physician.

C. Adjudication of Civil Surgeon Applications

1. Adjudication

To determine whether to approve or deny the application for civil surgeon designation, the officer should follow these steps:

Adjudication of Civil Surgeon Applications

Step 1: Determine whether the physician meets all of the eligibility requirements to be designated a civil surgeon:

Is the physician authorized to work in the United States? [10] If an officer grants civil surgeon designation to a physician who is only authorized to work in the United States for a limited period of time, the designation should be limited to the duration of the physician’s work authorization.

Is the physician an M.D. or a D.O?

Is the physician licensed without restriction in the state in which he or she seeks to perform immigration medical examinations?

Does the physician have at least four years of professional experience, not including residency or internships or other experience related to training?

If there is insufficient information in the application and evidence submitted with the application to make this determination, the officer may issue a Request for Evidence (RFE) for additional information such as documentary evidence establishing any of the eligibility requirements.

If the physician does not meet all of the eligibility requirements, the officer should deny the application. Otherwise, go to Step 2.

Step 2: Determine whether the application warrants a favorable exercise of discretion. [11] USCIS has the discretion to designate as many (or as few) civil surgeons as needed. See 8 CFR 232.2(b). In general, a favorable exercise of discretion is warranted unless there are adverse factors that prevent it.

An unfavorable exercise of discretion may, for instance, be applied to any applications submitted by physicians who had a prior civil surgeon designation revoked by USCIS, and where the concerns underlying that revocation have not been resolved.

If there is insufficient evidence in the application to make this determination, the officer may request additional information through the issuance of a Request for Evidence (RFE).

Examples

Example: The physician had a prior civil surgeon designation revoked due to the physician’s confirmed participation in an immigration fraud scheme. The officer should deny the civil surgeon application as a matter of discretion. The fee will not be refunded since USCIS performed an adjudication of the application.

Example: The physician had a prior civil surgeon designation revoked due to suspension of her medical license. However, the officer determines that the underlying reason for the suspension has been resolved, is unlikely to recur, and the physician now has a current, unrestricted medical license. In this case, the officer may approve the civil surgeon application if the physician otherwise meets the eligibility requirements.

2. Approval

If the application for civil surgeon designation is approved, the officer should do the following:

Notification

Notify the physician in writing of the approval.

Files

Either create a new file for the physician who was granted civil surgeon designation; or, if a file for the physician already exists, update the file to reflect the grant of designation.

The files should be maintained in such a way as to facilitate retrieval or review of information relating to the specific civil surgeon. The file should be retained according to the established records retention schedule.

Updating Civil Surgeon List

The NBC should coordinate with Customer Service and Public Engagement Directorate (CSPE) to ensure the civil surgeon list is updated in a timely manner to reflect all newly designated civil surgeons. At a minimum, the newly designated civil surgeons full name, name of medical practice, address, and telephone number should be added to the list. Particular care should be taken when entering the civil surgeons zip code and telephone number since these are the primary ways that applicants search for civil surgeons.

3. Denial

If the application for civil surgeon designation is denied, the officer should do the following:

Notification

Notify the physician in writing of the denial. There is no appeal from a decision denying designation as a civil surgeon. However, the physician may file a motion to reopen or reconsider. [12] See 8 CFR 103.5. To file a motion to reopen or reconsider, a physician should file a Notice of Appeal or Motion (Form I-290B), with fee. Forms and fee information can be found at www.uscis.gov. In the decision denying designation as a civil surgeon, the officer must notify the physician of the possibility to file a timely motion to reopen or reconsider.

A physician who is denied designation is not precluded from reapplying for civil surgeon designation. In the decision denying designation as a civil surgeon, the officer should also notify the physician that he or she may reapply if the physician believes that he or she has overcome the reason(s) for denial. [13] If the physician would like to reapply for civil surgeon designation because he or she has overcome the reason(s) for denial, the physician must file a new Application for Civil Surgeon Designation (Form I-910) with the required evidence and filing fee.

Files

Create a new file for each physician who was denied designation; or, if a file for the physician already exists, the officer should update the file to reflect the denial of the designation.

4. File Maintenance

The files should be maintained in such a way as to facilitate retrieval or review of information relating to the specific civil surgeon. The file should be retained according to the established records retention schedule.

Footnotes

1.

See 8 CFR 232.2. In some circumstances, District Directors had delegated the designation authority to Field Office Directors in their districts.

 

2.

USCIS field offices continued to accept applications for civil surgeon designation until March 11, 2014. Federal regulations provide the authority for this transfer of authority: Director or district director prior to March 1, 2003, means the district director or regional service center director, unless otherwise specified. On or after March 1, 2003, pursuant to delegation from the Secretary of Homeland Security or any successive re-delegation, the terms mean, to the extent that authority has been delegated to such official: asylum office director; director, field operations; district director for interior enforcement; district director for services; field office director; service center director; or special agent in charge. The terms also mean such other official, including an official in an acting capacity, within U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or other component of the Department of Homeland Security who is delegated the function or authority above for a particular geographic district, region, or area. See 8 CFR 1.2.

 

3.

See Chapter 3, Blanket Civil Surgeon Designation [8 USCIS-PM C.3] for more information.

 

4.

USCIS also has the authority to select as many (or as few) civil surgeons necessary to serve the needs of the jurisdiction. See 8 CFR 232.2(b). Therefore, USCIS may also reject complete applications if it determines the jurisdiction’s needs are met. In this case, USCIS would return the entire application package to the physician, including the fee associated with the application.

 

5.

Filing instructions can be found at www.uscis.gov/I-910.

 

6.

The current version of the form and instructions can be accessed online at www.uscis.gov/i-910.

 

7.

See 8 CFR 103.7(b)(1)(i). The current filing fee can also be found at www.uscis.gov/i-910.

 

8.

If not all of the required initial evidence has been submitted or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer may request additional evidence.

 

9.

See 8 CFR 103.2(a)(2).

 

10.

If an officer grants civil surgeon designation to a physician who is only authorized to work in the United States for a limited period of time, the designation should be limited to the duration of the physician’s work authorization.

 

11.

USCIS has the discretion to designate as many (or as few) civil surgeons as needed. See 8 CFR 232.2(b).

 

12.

See 8 CFR 103.5. To file a motion to reopen or reconsider, a physician should file a Notice of Appeal or Motion (Form I-290B), with fee. Forms and fee information can be found at www.uscis.gov.

 

13.

If the physician would like to reapply for civil surgeon designation because he or she has overcome the reason(s) for denial, the physician must file a new Application for Civil Surgeon Designation (Form I-910) with the required evidence and filing fee.

 

Chapter 3 - Blanket Civil Surgeon Designation

A. Blanket Designation of State and Local Health Departments [1] See INA 209.

1. Overview

USCIS has the authority to designate either individual physicians or members of a specified class of physicians as civil surgeons, provided they meet the legal requirements. [2] As specified under INA 232(b), 8 CFR 232.2(b), and 42 CFR 34.2(b). Through policy and in agreement with the Centers for Disease Control and Prevention (CDC), USCIS designated all state and local health departments as civil surgeons. Health departments may only use this blanket civil surgeon designation to complete the vaccination assessments for refugees seeking adjustment of status. [3] See INA 209.

This blanket designation eases the difficulties encountered by refugee adjustment applicants in complying with the vaccination requirement. It also relieves USCIS of the need to maintain lists of health departments and the names of individual physicians at these health departments.

2. Eligible Physicians

Participation in this blanket civil surgeon designation is entirely voluntary and at the discretion of each health department. Health departments may only participate under this blanket designation if they have physicians authorized to provide medical services who meet the professional qualifications of a civil surgeon [4] As described in Chapter 1, Purpose and Background, Section C, Professional Qualifications [8 USCIS-PM C.1(C)]. since only these qualifying physicians may certify the vaccination assessment for refugees seeking adjustment of status. This includes volunteer physicians at state and local health departments.

Eligible physicians at health departments may, but are not required to, personally perform the vaccination assessment. Nurses or other medical professionals may perform the vaccination assessment and complete the vaccination record in the Report of Medical Examination and Vaccination Record (Form I-693) as long as the health department physician reviews and certifies the Form I-693.

Neither health departments nor eligible physicians at health departments need to obtain approval from USCIS prior to performing the vaccination component of immigration medical examinations as specified in the next section. Blanket designated civil surgeons are exempt from both application and fee requirements for civil surgeon designation.

However, health departments and eligible physicians must review and be familiar with the Technical Instructions for the vaccination requirements before they can begin performing vaccination assessments. [5] The Technical Instructions are available online at: http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technical-instructions.html.

3. Scope

Pursuant to the understanding reached between USCIS and CDC, health departments may only use this blanket civil surgeon designation to complete the vaccination assessments for refugees seeking adjustment of status. [6] See INA 209. Therefore, health departments operating under this blanket designation should examine government-issued documents presented by the applicant to verify that he or she is a refugee. [7] Refugees may present their Arrival-Departure Record (Form I-94), Refugee Travel Document (Form I-571), or Employment Authorization Document (Form I-766) as evidence of refugee status. However, health departments completing the vaccination assessment will not know whether a refugee seeks adjustment under INA 209 or under another provision. Therefore, when reviewing a vaccination assessment completed by a blanket designated civil surgeon for a refugee seeking adjustment, the officer should confirm that the refugee is adjusting under INA 209 before accepting the vaccination assessment performed by a blanket designated health department. This blanket designation does not cover asylees seeking adjustment of status. [8] See INA 209.

Accordingly, health departments operating under this blanket designation are authorized only to perform the vaccination component of the immigration medical examination for refugees seeking adjustment of status. If a health department physician would like to perform parts of the immigration medical examination other than the vaccination assessment, the physician must obtain designation as a civil surgeon through the standard application process. [9] As outlined in Chapter 2, Application for Civil Surgeon Designation [8 USCIS-PM C.2].

Refugees who require the entire medical exam, [10] See 8 CFR 209.1(b). will likewise need to visit a physician designated as a civil surgeon through the standard application process. [11] However, blanket-designated health departments may still perform the vaccination component of the medical exam for refugees who require the entire medical exam.

4. Recording and Certification Requirements

Health departments operating under the blanket civil surgeon designation must record the vaccination assessment on the Report of Medical Examination and Vaccination Record (Form I-693) as follows:

Ensure the applicants information and certification are completed;

Complete the vaccination record; and

Complete the civil surgeons information and certification.

In accordance with the agreements reached with CDC, health departments operating under the blanket civil surgeon designation are required to certify Form I-693 by providing the attending physicians signature and a seal or stamp of the health department:

Physician Signature

The attending physician must sign Form I-693. A signature stamp may be used. Health department nurses or other health care professionals may, but are not required to, co-sign the form. However, a form that has been signed only by a registered nurse, physician's assistant, or other medical professional who is not a licensed physician is not sufficient.

If a form for a refugee adjusting status has been signed only by a medical professional employed by the health department (without an accompanying signature by a medical doctor), a Request for Evidence (RFE) should be sent to the applicant for corrective action.

Health Department Stamp or Seal

The health department is also required to affix either the official stamp or raised seal (whichever is customarily used) of that health department on the space designated on the form.

As with all immigration medical examinations, the signed Form I-693 must be placed in a sealed envelope, according to the forms instructions.

B. Blanket Designation of Military Physicians as Civil Surgeons

1. Overview

Through policy, USCIS extended a blanket civil surgeon designation to military physicians for the completion of all parts of a required immigration medical examination for members and veterans of the U.S. armed forces and certain eligible dependents if the military physician meets certain conditions.

This blanket designation eases the difficulties encountered by U.S. armed forces members, veterans, and certain eligible dependents when obtaining immigration medical examinations. It also eases the civil surgeon designation process for military physicians, since many military physicians are not licensed in the states in which they provide medical services for the military. Furthermore, this policy relieves USCIS of the need to maintain lists of individual military physicians designated as civil surgeons.

2. Eligible Physicians

Participation in this blanket civil surgeon designation is entirely voluntary and at the discretion of each medical facility. This blanket designation only applies to military physicians who:

Meet the professional qualifications of a civil surgeon [12] As described in Chapter 1, Purpose and Background, Section C, Professional Qualifications [8 USCIS-PM C.1(C)]. except that the physician may be licensed in any state in the United States, and is not required to be licensed in the state in which the physician is performing the immigration medical examination;

Are employed by the Department of Defense (DOD) or provides medical services to U.S. armed forces members, veterans, and their dependents as military contract providers or civilian physicians; and

Are authorized to provide medical services at a military treatment facility (MTF) within the United States.

Neither the medical facility nor the physician who qualifies and wishes to participate in the blanket designation needs to obtain approval from USCIS prior to performing immigration medical examinations as specified in the next section. Blanket designated civil surgeons are exempt from both USCIS application and fee requirements for civil surgeon designation.

However, military physicians must review and be familiar with CDCs Technical Instructions for the Medical Examination of Aliens in the United States before they can begin performing immigration medical examinations. [13] The Technical Instructions are available online at: http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

3. Scope

Pursuant to the understanding reached between USCIS and CDC, military physicians who qualify under this blanket civil surgeon designation may perform the entire immigration medical examination as long as the exam is conducted in the United States on the premises of an MTF, and for a U.S. armed forces member, veteran, or dependent who is eligible to receive medical care at that MTF.

Military physicians must apply for civil surgeon designation under the standard designation process [14] As outlined in Chapter 2, Application for Civil Surgeon Designation [8 USCIS-PM C.2]. if they wish to complete immigration medical examinations:

In a U.S. location other than on the premises of an MTF; or

For applicants other than those U.S. armed forces members, veterans, or dependents to whom they are authorized to provide medical services at an MTF.

U.S. armed forces members, veterans, or dependents will need to visit a physician designated as civil surgeon through the standard application process if they:

Prefer to have the immigration medical examination performed by a physician who does not qualify under this blanket designation for military physicians;

Prefer to have the immigration medical examination performed in a U.S. location other than at the MTF at which they are authorized to receive medical services; or

Do not have access to a military physician who is performing immigration medical examinations under this blanket designation.

4. Recording and Certification Requirements

Military physicians operating under the blanket civil surgeon designation must record the results of the immigration medical examination on the Report of Medical Examination and Vaccination Record (Form I-693), according to the standard procedures all civil surgeons are required to follow.

In accordance with the agreements reached with CDC, a military physician operating under the blanket civil surgeon designation is required to certify Form I-693 by providing both of the following on the form:

Physician Signature

The blanket designated civil surgeon must sign Form I-693. A signature stamp may be used. Nurses or other health care professionals may, but are not required to, co-sign the form. However, a form that has been signed only by a registered nurse, physician's assistant, or other medical professional who is not a licensed physician is not sufficient. If a form for a U.S. armed forces member, veteran, or eligible dependent has been signed only by a medical professional employed by the military facility (without an accompanying signature by a medical doctor), an RFE should be sent to the applicant for corrective action.

MTF Stamp or Seal

The MTF is also required to affix either the official stamp or raised seal of that facility on the space designated on the form.

The signed Form I-693 must be placed in a sealed envelope, according to the forms instructions.

Footnotes

1.

See INA 209.

 

2.

As specified under INA 232(b), 8 CFR 232.2(b), and 42 CFR 34.2(b).

 

3.

See INA 209.

 

4.

As described in Chapter 1, Purpose and Background, Section C, Professional Qualifications [8 USCIS-PM C.1(C)].

 

5.

The Technical Instructions are available online at: http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/vaccination-civil-technical-instructions.html.

 

6.

See INA 209.

 

7.

Refugees may present their Arrival-Departure Record (Form I-94), Refugee Travel Document (Form I-571), or Employment Authorization Document (Form I-766) as evidence of refugee status. However, health departments completing the vaccination assessment will not know whether a refugee seeks adjustment under INA 209 or under another provision. Therefore, when reviewing a vaccination assessment completed by a blanket designated civil surgeon for a refugee seeking adjustment, the officer should confirm that the refugee is adjusting under INA 209 before accepting the vaccination assessment performed by a blanket designated health department.

 

8.

See INA 209.

 

9.

As outlined in Chapter 2, Application for Civil Surgeon Designation [8 USCIS-PM C.2].

 

10.

See 8 CFR 209.1(b).

 

11.

However, blanket-designated health departments may still perform the vaccination component of the medical exam for refugees who require the entire medical exam.

 

12.

As described in Chapter 1, Purpose and Background, Section C, Professional Qualifications [8 USCIS-PM C.1(C)].

 

13.

The Technical Instructions are available online at: http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

 

14.

As outlined in Chapter 2, Application for Civil Surgeon Designation [8 USCIS-PM C.2].

 

Chapter 4 - Termination and Revocation

A. Voluntary Termination

A civil surgeon who no longer wishes to be designated as a civil surgeon should request, in writing, that USCIS terminate the designation. [1] For more information on where to send a request to terminate one’s designation, visit the USCIS website.

A physician who voluntarily terminates his or her civil surgeon designation must re-apply with USCIS if he or she wishes to be designated as a civil surgeon again.

B. Revocation

Current regulations do not contain specific revocation provisions; however, the law does not preclude revocation, especially when the physician no longer qualifies for civil surgeon designation.

1. Grounds for Revocation

USCIS may revoke a physicians civil surgeon designation if he or she:

Fails to comply with the Technical Instructions, Form I-693 Instructions, or fails to fulfill other responsibilities of a civil surgeon consistently or intentionally;

Falsifies or conceals any material fact in the application for civil surgeon designation, or provides any false documents or information to obtain the designation;

Knowingly falsifies or conceals any material fact on Form I-693, or includes any false documents or information to support any findings in the record;

Fails to maintain a currently valid and unrestricted license to practice as a physician in any state in which the physician conducts immigration medical examinations, unless otherwise excepted or exempted from this requirement;

Is subject to any court or disciplinary action that revokes, suspends, or otherwise restricts the physicians authority to practice as a physician in any state in which the physician conducts immigration medical examinations; or

Has failed to meet any of the professional qualifications for a civil surgeon at any time during the period of a physician’s designation as a civil surgeon, unless USCIS finds both that the physician has corrected any gap in eligibility and that the physician refrained from conducting immigration medical examinations during any period in which the physician was not eligible for designation as a civil surgeon.

2. Initiating Revocation

The file should be well-documented before USCIS takes any steps to revoke a physicians civil surgeon designation. When the proposed revocation is based on allegations of misconduct reported by an adjustment of status applicant, the officer should take a sworn statement to support the allegations. The officer should also retain any other available evidence of the alleged misconduct.

The National Benefits Center (NBC) may request the assistance of other USCIS offices to collect evidence if such evidence is not otherwise available to the NBC and if resources allow. For instance, if the NBC is unable to reach or communicate with a particular civil surgeon, the NBC may request assistance from the local office to contact the civil surgeon.

In instances where the civil surgeon may be involved in fraud, USCIS Fraud Detection and National Security Directorate (FDNS) should be notified per the standard fraud referral operating procedures and the civil surgeons record should be annotated to reflect that suspected fraud played a factor in initiating revocation. Depending on the nature and severity of the allegations, it may also be necessary to consult with the Centers for Disease Control and Prevention (CDC) to obtain expert medical advice.

USCIS counsel must review any proposed revocation, unless the intended revocation is based on evidence that the civil surgeon is no longer licensed to practice medicine in the state where he or she is performing immigration medical examinations. When referring the case to USCIS counsel, the officer should include the reasons for the intended revocation and copies of the supporting evidence.

Once the decision has been made to initiate the revocation, the officer must serve the physician with a notice of intent to revoke by Certified Mail/Return Receipt Requested or other method that provides proof of delivery. The notice must clearly state the exact grounds for the intended revocation and include copies of any relevant evidence. [2] USCIS may redact certain sensitive or identifying information. The officer must give the physician 30 days from the date of the notice to respond with countervailing evidence. The physician may be represented by private counsel at his or her own expense. [3] Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) must also be filed in this case.

3. Allegations of Malpractice, Breaches of Medical Ethics, and Other Improper Conduct

The authority to designate civil surgeons does not give USCIS authority to regulate the practice of medicine. For this reason, the process for revoking designation as a civil surgeon is not the proper forum for adjudicating complaints against a physician concerning malpractice, breach of medical ethics, or other improper conduct. If USCIS receives a complaint of this kind, USCIS should advise the complainant to make the complaint with the proper medical licensing authority for the State or territory in which the physician practices.

4. Decision

Once the period for the physicians response to the notice of intent to revoke has expired, USCIS will review the record and decide whether to revoke the physicians designation as a civil surgeon. Any response from the physician will be included in the record of proceeding. USCIS must notify the physician in writing of the decision.

There is no administrative appeal from a decision to revoke a physicians designation as a civil surgeon. The physician may, however, file a motion to reopen or reconsider. [4] As permitted in 8 CFR 103.5. To file a motion to reopen or reconsider, a physician should file a Notice of Appeal or Motion (Form I-290B), with fee. Forms and fee information can be found at www.uscis.gov. A decision revoking a physicians designation as a civil surgeon must notify the physician of the right to file a timely motion to reopen or reconsider.

Similarly, USCIS may reopen and reconsider a decision on its own motion. A physician whose civil surgeon designation is revoked is not precluded from reapplying for civil surgeon designation, but the ground(s) upon which revocation is based should be considered as part of the adjudication of a subsequent application for civil surgeon designation. A physician, however, whose prior civil surgeon designation was revoked based on confirmed involvement in an immigration benefits fraud scheme will be denied civil surgeon designation upon reapplication.

If USCIS revokes a physician’s designation as a civil surgeon, the public civil surgeon list should be updated immediately to remove the civil surgeons information. [5] As specified in Chapter 5, Civil Surgeon List [8 USCIS-PM C.5].

If an officer reviewing Form I-693 has a concern about the sufficiency of an immigration medical examination performed by a physician who was designated at the time of the medical exam but subsequently had his or her designation revoked, the officer may reorder the medical exam to be performed by a civil surgeon to address the concern. [6] In general, an officer may order or reorder an immigration medical examination, in part or in whole, at any time if he or she has concerns regarding an applicant’s inadmissibility on health-related grounds. See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

Footnotes

1.

For more information on where to send a request to terminate one’s designation, visit the USCIS website.

 

2.

USCIS may redact certain sensitive or identifying information.

 

3.

Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) must also be filed in this case.

 

4.

As permitted in 8 CFR 103.5. To file a motion to reopen or reconsider, a physician should file a Notice of Appeal or Motion (Form I-290B), with fee. Forms and fee information can be found at www.uscis.gov.

 

5.

As specified in Chapter 5, Civil Surgeon List [8 USCIS-PM C.5].

 

6.

In general, an officer may order or reorder an immigration medical examination, in part or in whole, at any time if he or she has concerns regarding an applicant’s inadmissibility on health-related grounds. See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

 

Chapter 5 - Civil Surgeon List

A. Overview

USCIS maintains a nationwide list of civil surgeons available to the public. Applicants may search the list for civil surgeons designated in their area at USCIS.gov (via the Civil Surgeon Locator) or through the USCIS Contact Centers toll-free number at 1-800-375-5283.

Physicians on the civil surgeon list are generally current in their designation as civil surgeons. Since the list is updated weekly, it is advisable for the applicants to check that a physician is still on the civil surgeon list as close as possible to the date of the immigration medical exam appointment. If uncertain, applicants should also confirm with their doctors regarding their civil surgeon status prior to the immigration medical examination.

B. Requests to Update the Civil Surgeon Information

A civil surgeon should inform USCIS of any change that is relevant to the civil surgeon designation within 15 days of the change. [1] See www.uscis.gov/i-910 for more information on how to update contact information.

If an officer at a USCIS field or district office receives a request to update the civil surgeon list, he or she should forward the request to the National Benefits Center (NBC) for review.

C. Maintaining the Civil Surgeon List

USCIS will review all requests from civil surgeons to update contact information or to terminate the civil surgeon designation. USCIS will also update the civil surgeon list accordingly, as well as remove civil surgeons whose designations have been suspended or revoked.

1. Request to Update Contact Information

If a civil surgeon’s request to update contact information involves a move to a new state, then evidence of medical licensure in the new state [2] The physician must show that he or she continues to meet the professional qualifications to be a civil surgeon in the new state. must accompany the request before the officer may approve it. If this evidence is missing, the officer may request this information through the issuance of a Request for Evidence (RFE).

2. Termination, Suspension, or Revocation

If a civil surgeon requests to be removed from the civil surgeon list or if USCIS determines designation should be suspended or revoked, the officer should annotate the date and reason for removal. Records of former civil surgeons should be retained internally; the information may be relevant, for instance, to the adjudication of a medical examination the civil surgeon completed before he or she was removed from the civil surgeon list or if the physician re-applies for civil surgeon designation in the future.

3. Updates and Review of Civil Surgeon List

USCIS will ensure the civil surgeon list is updated in a timely manner to reflect any changes in a civil surgeons contact information or designation status. In addition, USCIS will perform a review of the civil surgeon list on a bi-annual basis, at a minimum, to ensure that all publicly available civil surgeon information is current and accurate.

If during this review USCIS learns that a civil surgeon is no longer performing immigration medical examinations in the location specified as part of the designation, or is no longer practicing medicine at all, USCIS may terminate the civil surgeon designation and remove the physician from the list. USCIS should follow regular revocation procedures.

Footnotes

1.

See www.uscis.gov/i-910 for more information on how to update contact information.

 

2.

The physician must show that he or she continues to meet the professional qualifications to be a civil surgeon in the new state.

 

Part J - Fraud and Willful Misrepresentation

Chapter 1 - Purpose and Background

A. Purpose

To properly control movement across its borders, a government must be able to scrutinize and assess a person’s identity as part of determining eligibility to enter. If a foreign national willfully provides incorrect information about identity and intentions for entering the country, the person has deprived the government of its right to examine the request for admission. [1] See Matter of B- and P-, 2 I&N Dec. 638, 645-46 (A.G. 1947).

In recognition of these principles, Congress provided a specific ground of inadmissibility to address the use of fraud or willful misrepresentation when obtaining a benefit under the Immigration and Nationality Act (INA).

There are exceptions and waivers to inadmissibility due to fraud or willful misrepresentation available to a person under certain circumstances depending on the particular immigration benefit the person is seeking. [2] For more on the waiver of fraud or willful misrepresentation under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

B. Background

The 1924 Immigration Act [3] See Sections 22(b) and 22(c) of the Immigration Act of 1924, Pub. L. 68-139 (May 26, 1924). made obtaining a visa under a false name or submitting false evidence in support of a visa application a federal crime. The Board of Immigration Appeals (BIA) and the courts used this principle to find that a visa obtained by fraud was no visa at all, making the person’s admission with a fraudulent visa unlawful. [4] See Matter of B- and P-, 2 I&N Dec. 638, 640-41 (A.G. 1947), citing McCandless v. Murphy, 47 F.2d 1072 (3rd Cir. 1931). See United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (7th Cir. 1938). See United States ex rel. Fink v. Reimer, 96 F.2d 217 (2nd Cir. 1938).

Congress codified the BIA’s and the courts’ approach in the Immigration and Nationality Act of 1952. With former INA 212(a)(19), it created a new bar to admission for any applicant who used fraud or willful misrepresentation to gain entry into the United States or obtain a visa or other documentation. [5] Former INA 212(a)(19) made inadmissible any applicant who “seeks to procure, or has sought to procure or has procured a visa or other documentation, or seeks to enter the United States by fraud, or by willfully misrepresenting a material fact.” See the Immigration and Nationality Act of 1952, Pub. L. 82-414 (June 27, 1952).

In 1986, Congress amended the bar so that a person could be found inadmissible for using fraud or willful misrepresentation when seeking any benefit under the INA, not just entry, visas, or other documents. [6] Congress expanded former INA 212(a)(19) to make one inadmissible for using fraud or willful misrepresentation in relation to “a visa, other documentation, or entry into the United States or other benefit provided under this Act.” See Section 6(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. 99-639, 100 Stat. 3537, 3543 (November 10, 1986). Congress re-designated former INA 212(a)(19) as INA 212(a)(6)(C) in 1990 but did not alter the bar to admission itself. [7] See Section 601(a) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 5067 (November 29, 1990). Substantive changes to the inadmissibility ground did not come until 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [8] See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996).

With the passage of IIRIRA, Congress created two separate inadmissibility grounds that remain unchanged to this day: [9] See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

Fraud or willful misrepresentation made in connection with obtaining an immigration benefit; [10] See INA 212(a)(6)(C)(i). and

False claim to U.S. citizenship made on or after September 30, 1996. [11] See INA 212(a)(6)(C)(ii).

These two grounds differ significantly. This Part J only addresses the inadmissibility determination for fraud or willful misrepresentation made in connection with obtaining an immigration benefit. This includes, however, false claims to U.S. citizenship made prior to September 30, 1996.

Foreign nationals who made a false claim to U.S. citizenship prior to September 30, 1996, cannot be found inadmissible under the false claim to U.S. citizenship ground of inadmissibility. [12] See INA 212(a)(6)(C)(ii). IIRIRA made this ground applicable only to false claims made on or after September 30, 1996. [13] See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208 (September 30, 1996).

Therefore, for false claims to U.S. citizenship made before September 30, 1996, the officer must analyze the person’s inadmissibility according to the general fraud and willful misrepresentation ground of inadmissibility, as outlined in this Part J. [14] See INA 212(a)(6)(C)(i).

C. Scope

This guidance addresses inadmissibility for fraud and willful misrepresentation [15] See INA 212(a)(6)(C)(i). Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996 is a separate inadmissibility ground. See INA 212(a)(6)(C)(ii). in relation to obtaining a benefit under the INA, including inadmissibility for falsely claiming U.S. citizenship before September 30, 1996.

D. Legal Authorities

INA 212(a)(6)(C)(i) – Illegal entrants and immigration violators - misrepresentation

Footnotes

1.

See Matter of B- and P-, 2 I&N Dec. 638, 645-46 (A.G. 1947).

 

2.

For more on the waiver of fraud or willful misrepresentation under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

 

3.

See Sections 22(b) and 22(c) of the Immigration Act of 1924, Pub. L. 68-139 (May 26, 1924).

 

4.

See Matter of B- and P-, 2 I&N Dec. 638, 640-41 (A.G. 1947), citing McCandless v. Murphy, 47 F.2d 1072 (3rd Cir. 1931). See United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (7th Cir. 1938). See United States ex rel. Fink v. Reimer, 96 F.2d 217 (2nd Cir. 1938).

 

5.

Former INA 212(a)(19) made inadmissible any applicant who “seeks to procure, or has sought to procure or has procured a visa or other documentation, or seeks to enter the United States by fraud, or by willfully misrepresenting a material fact.” See the Immigration and Nationality Act of 1952, Pub. L. 82-414 (June 27, 1952).

 

6.

Congress expanded former INA 212(a)(19) to make one inadmissible for using fraud or willful misrepresentation in relation to “a visa, other documentation, or entry into the United States or other benefit provided under this Act.” See Section 6(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. 99-639, 100 Stat. 3537, 3543 (November 10, 1986).

 

7.

See Section 601(a) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 5067 (November 29, 1990).

 

8.

See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996).

 

9.

See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

 

10.

See INA 212(a)(6)(C)(i).

 

11.

See INA 212(a)(6)(C)(ii).

 

12.

See INA 212(a)(6)(C)(ii).

 

13.

See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208 (September 30, 1996).

 

14.

See INA 212(a)(6)(C)(i).

 

15.

See INA 212(a)(6)(C)(i). Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996 is a separate inadmissibility ground. See INA 212(a)(6)(C)(ii).

 

Chapter 2 - Overview of Fraud and Willful Misrepresentation

A. General

An applicant may be found inadmissible if he or she obtains a benefit under the Immigration and Nationality Act (INA) either through:

Fraud; or

Willful misrepresentation.

Although fraud and willful misrepresentation are distinct actions for inadmissibility purposes, they share common elements. All of the elements necessary for a finding of inadmissibility based on willful misrepresentation are also needed for a finding of inadmissibility based on fraud. However, a fraud finding requires two additional elements.

This is why a person who is inadmissible for fraud is always also inadmissible for willful misrepresentation. However, the opposite is not necessarily true: a person inadmissible for willful misrepresentation is not necessarily inadmissible for fraud. [1] For more on the interplay between findings of fraud and willful misrepresentation, see Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].

Additionally, misrepresentation of a material fact may lead to other adverse immigration consequences. For example, if the beneficiary commits marriage fraud, it may have adverse immigration consequences for both the petitioner and the beneficiary.

B. Willful Misrepresentation

Inadmissibility based on willful misrepresentation requires a finding that a person willfully misrepresented a material fact. [2] See INA 212(a)(6)(C)(i). For a definition of materiality, see Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)]. For a person to be inadmissible, the officer must find all of the following elements:

The person procured, or sought to procure, a benefit under U.S. immigration laws;

The person made a false representation;

The false representation was willfully made;

The false representation was material; and

The false representation was made to a U.S. government official, generally an immigration or consular officer. [3] See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

If all of the above elements are present, then the person is inadmissible for willful misrepresentation.

If the person succeeded in obtaining the benefit under the INA, he or she would be inadmissible for having procured the benefit by willful misrepresentation. If the attempt was not successful, [4] For example, the misrepresentation was detected and the benefit was denied. the person would still be inadmissible for having “sought to procure” the immigration benefit by willful misrepresentation. In each case, evidence of intent to deceive is not required. [5] See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975).

C. Fraud

Inadmissibility based on fraud requires a finding that a person knowingly made a false representation of a material fact with the intent to deceive the other party. [6] See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998).

For a person to be inadmissible for having procured entry, a visa, other documentation, or any other benefit under the INA by fraud, the officer must find all of the following elements:

The person procured, or sought to procure, a benefit under U.S. immigration laws;

The person made a false representation;

The false representation was willfully made;

The false representation was material;

The false representation was made to a U.S. government official, generally an immigration or consular officer; [7] See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer); [8] See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998). and

The U.S. government official believed and acted upon the false representation by granting the benefit. [9] See Matter of G- G-, 7 I&N Dec. 161 (BIA 1956).

If all of the above elements are present, then the person is inadmissible for having procured an immigration benefit by fraud. Since the elements required for fraud also include the elements for willful misrepresentation, the person is also inadmissible for willful misrepresentation.

If the person was unsuccessful in obtaining the benefit, [10] For example, the fraud was detected and the benefit was denied. he or she may still be inadmissible for having “sought to procure” the immigration benefit by fraud. In this case, the fraud element requiring the U.S. government official to believe and act upon the false representation is not applicable; however, intent to deceive is still a required element.

In cases of attempted fraud, it may be difficult to establish the person’s intent to deceive because the fraud has not actually succeeded. However, establishing intent to deceive may be unnecessary; if evidence supports a finding of willful misrepresentation, which does not require intent to deceive, [11] See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). then the person is already considered inadmissible without any further determination of fraud.

D. Comparing Fraud and Willful Misrepresentation

In practice, the distinction between fraud and willful misrepresentation is not greatly significant because either fraud or a willful misrepresentation alone is sufficient to establish inadmissibility.

The following table shows a comparison of the elements required for each ground:

Comparing Fraud and Willful Misrepresentation

Elements Required for a Finding of …

Scenario

Willful

Misrepresentation

Fraud

The person procured, or sought to procure, a benefit under U.S. immigration laws.

x

x

The person made a false representation.

x

x

The false representation was willfully made.

x

x

The false representation was material.

x

x

The false representation was made to a U.S. government official.

x

x

When making the false representation, the person intended to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer).

Not Applicable

x

The U.S. government official believed and acted upon the false representation.

Not Applicable

x

(Not applicable if fraud finding based on “seeking to procure” benefit)

As the table illustrates, a fraud finding encompasses a willful misrepresentation finding. Therefore, if all the elements are present to make a finding of fraud, then the elements for making a finding of willful misrepresentation must also necessarily be present.

Example

The officer finds that a person obtained an immigration benefit by fraud. The person is then inadmissible for both fraud [12] See Matter of B- and P-, 2 I&N Dec. 638, 651 (A.G. 1947). and willful misrepresentation.

Example:

The officer finds that there was no intent to deceive, but the other elements of fraud are present. The person is not inadmissible based on fraud but is still inadmissible for willful misrepresentation. [13] See Matter of Kai Hing Hui, 15 I&N Dec. 288, 290 (“We interpret the Attorney General's decision in Matter of S- and B-C- as one which modified Matter of G-G- so that the intent to deceive is no longer required before the willful misrepresentation charge comes into play.”).

E. Overview of Admissibility Determination

A finding of willful misrepresentation or fraud requires certain determinations. If the evidence indicates that the person may be inadmissible due to fraud or willful misrepresentation, the officer should follow the steps in the table below to determine inadmissibility:

Overview of Admissibility Determination

Step

For More Information

Step 1

Determine whether the person procured, or sought to procure, a benefit under U.S. immigration laws.

Chapter 3, Adjudicating Inadmissibility, Section B, Procuring a Benefit under the INA [8 USCIS-PM J.3(B)]

Step 2

Determine whether the person made a false representation.

Chapter 3, Adjudicating Inadmissibility, Section C, False Representation [8 USCIS-PM J.3(C)]

Step 3

Determine whether the false representation was willfully made.

Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness [8 USCIS-PM J.3(D)]

Step 4

Determine whether the false representation was material.

Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)]

Step 5

Determine whether the false representation was made to a U.S. government official.

Chapter 3, Adjudicating Inadmissibility, Section F, Fraud or Willful Misrepresentation Must Be Made to a U.S. Government Official [8 USCIS-PM J.3(F)]

Step 6

Determine whether, when making the false representation, the person intended to deceive a U.S. government official authorized to act upon request (generally an immigration or consular officer).

Chapter 3, Adjudicating Inadmissibility, Section G, Elements Only Applicable to Fraud [8 USCIS-PM J.3(G)]

Step 7

Determine whether the U.S. government official believed and acted upon the false representation.

Chapter 3, Adjudicating Inadmissibility, Section G, Elements Only Applicable to Fraud [8 USCIS-PM J.3(G)]

Step 8

Determine whether a waiver of inadmissibility is available.

Volume 9, Waivers [14] For guidance on the waiver of the fraud and willful misrepresentation inadmissibility ground under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

When making the inadmissibility determination, the officer should keep in mind the severe nature of the penalty for fraud or willful misrepresentation. The person will be barred from admission for the rest of his or her life unless the person qualifies for and is granted a waiver. The officer should examine all facts and circumstances when evaluating inadmissibility for fraud or willful misrepresentation.

Footnotes

1.

For more on the interplay between findings of fraud and willful misrepresentation, see Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].

 

2.

See INA 212(a)(6)(C)(i). For a definition of materiality, see Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)].

 

3.

See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

 

4.

For example, the misrepresentation was detected and the benefit was denied.

 

5.

See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975).

 

6.

See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998).

 

7.

See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

 

8.

See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998).

 

9.

See Matter of G- G-, 7 I&N Dec. 161 (BIA 1956).

 

10.

For example, the fraud was detected and the benefit was denied.

 

11.

See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975).

 

12.

See Matter of B- and P-, 2 I&N Dec. 638, 651 (A.G. 1947).

 

13.

See Matter of Kai Hing Hui, 15 I&N Dec. 288, 290 (“We interpret the Attorney General's decision in Matter of S- and B-C- as one which modified Matter of G-G- so that the intent to deceive is no longer required before the willful misrepresentation charge comes into play.”).

 

14.

For guidance on the waiver of the fraud and willful misrepresentation inadmissibility ground under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

 

Chapter 3 - Adjudicating Inadmissibility

A. Evidence and Burden of Proof

1. Evidence

To find a person inadmissible for fraud or willful misrepresentation, [1] See INA 212(a)(6)(C)(i). there must be at least some evidence that would permit a reasonable person to find that the person used fraud or that he or she willfully misrepresented a material fact in an attempt to obtain a visa, other documentation, admission into the United States, or any other immigration benefit. [2] The “reasonable person” standard is drawn from INS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency fact-finding must be accepted unless a reasonable fact-finder would necessarily conclude otherwise).

In addition, the evidence must show that the person made the misrepresentation to an authorized official of the U.S. government, whether in person, in writing, or through other means. [3] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961). Examples of evidence an officer may consider include oral or written testimony, or any other documentation containing false information.

2. Burden of Proof

The burden of proof to establish admissibility during the immigration benefit-seeking process is always on the applicant. During the adjudication of the benefit, the burden never shifts to the government. [4] See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

If there is no evidence the applicant obtained or sought to obtain a benefit under the Immigration and Nationality Act (INA) by fraud or willful misrepresentation, USCIS should find that the applicant has met the burden of proving that he or she is not inadmissible under this ground. [5] See Matter of D- L- and A- M-, 20 I&N Dec. 409 (BIA 1991).

However, if there is evidence that would permit a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, then the applicant has not successfully met the burden of proof. [6] See INS v. Elias-Zacarias, 502 U.S. 478 (1992). In failing to meet the burden of proof, the applicant will be considered inadmissible for fraud or willful misrepresentation unless the applicant is able to successfully rebut the officer’s inadmissibility finding.

If the officer’s finding of inadmissibility is based on evidence that the applicant obtained or sought to obtain a benefit under the INA by willful misrepresentation, then the applicant has the burden of establishing at least one of the following facts to rebut the finding:

The misrepresentation was not made to procure a visa, admission, or some other benefit under the INA;

There was no false representation;

The false representation was not willful;

The false representation was not material; or

The false representation was not made to a U.S. government official.

If the officer’s finding of inadmissibility is based on evidence that the applicant obtained a benefit under the INA by fraud, then the applicant has the burden of establishing at least one of the following facts to rebut the finding:

The fraud was not made to procure a visa, admission, or some other benefit under the INA;

There was no false representation;

The false representation was not willful;

The false representation was not material;

The false representation was not made to a U.S. government official;

The person did not intend to deceive; or

The U.S. government official did not believe or did not act upon the false representation.

If the officer’s finding of inadmissibility is based on evidence that the applicant sought to obtain a benefit under the INA by fraud, then the applicant has the burden of establishing at least one of the following facts to rebut the finding:

The fraud was not made to procure a visa, admission, or some other benefit under the INA;

There was no false representation;

The false representation was not willful;

The false representation was not material;

The false representation was not made to a U.S. government official; or

The person did not intend to deceive.

If the officer determines, after assessing all of the evidence, that the applicant has established at least one of the above facts, then the applicant has successfully rebutted the inadmissibility finding. The applicant has therefore met the burden of proving that he or she is not inadmissible on account of fraud or willful misrepresentation.

If the officer determines, after assessing all of the evidence, that the applicant has established none of these facts, then the applicant has not successfully rebutted the inadmissibility finding. The applicant is therefore inadmissible because he or she has not satisfied the burden of proof. [7] See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967). See Matter of M-, 3 I&N Dec. 777 (BIA 1949).

Finally, if the officer finds that the evidence for and against a finding of fraud or willful misrepresentation is of equal weight, then the applicant is inadmissible due to failure to meet the burden of proof. As long as there is a reasonable evidentiary basis to conclude that a person is inadmissible for fraud or willful misrepresentation, and the applicant has not overcome that reasonable basis with evidence, the officer should find the applicant inadmissible.

3. The U.S Department of State’s 90-Day Rule

The U.S. Department of State (DOS) developed ​a​ 90-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who ​​violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her​ intentions at the time of the visa application or to the immigration officer at the port of entry​.​

The 90-day rule is not a “rule” in the sense of being a binding principle or decision​. ​The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.

B. Procuring a Benefit under the INA

1. General

In order to be found inadmissible for fraud or willful misrepresentation, a person must seek to procure, have sought to procure, or have procured one of the following:

An immigrant or nonimmigrant visa;

Other documentation;

Admission into the United States; or

Other benefit provided under the INA.

The fraud or willful misrepresentation must have been made to an official of the U.S. government, generally an immigration or consular officer. [8] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

2. Other Documentation

Other documentation” refers to documents required when a person applies for admission to the United States. This includes, but is not limited to:

Re-entry permits;

Refugee travel documents;

Border crossing cards; and

U.S. passports.

Documents evidencing extension of stay are not considered entry documents. [9] See Matter of M-y R-, 6 I&N Dec. 315 (BIA 1954). See 9 FAM 302.9-4(B)(7), Interpretation of the Terms “Other Documentation” or “Other Benefit.” Similarly, documents such as petitions and labor certification forms are documents that are presented in support of a visa application or applications for status changes. They are not, by themselves, entry documents and therefore, they are also not considered “other documentation.

However, if such documents are used in support of obtaining another benefit provided under the INA, they may be relevant to a finding of willful misrepresentation or fraud.

3. Other Benefits Provided under the INA

Any “other benefit” refers to an immigration benefit or entitlement provided for by the INA. This includes, but is not limited to:

Requests for extension of nonimmigrant stay; [10] See 8 CFR 214.1.

Change of nonimmigrant status; [11] See INA 248. See 8 CFR 248.

Permission to re-enter the United States;

Waiver of the 2-year foreign residency requirement; [12] See INA 212(e).

Employment authorization; [13] See INA 274A. See 8 CFR 274a.12.

Parole; [14] See INA 212(d)(5). See 8 CFR 212.5.

Voluntary departure; [15] See INA 240B. See 8 CFR 240.25 and 8 CFR 1240.26.

Adjustment of status; [16] See INA 245. and

Requests for stay of deportation. [17] See 9 FAM 302.9-4(B)(7), Interpretation of the Terms “Other Documentation” or “Other Benefit.”

C. False Representation

1. General

False representation, or usually called “misrepresentation,” is an assertion or manifestation that is not in accordance with the true facts. A person may make a false representation in oral interviews, or written applications, or by submitting evidence containing false information. [18] See legacy Immigration and Naturalization Service General Counsel Opinion 91-39. See 9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation.

2. False Representation Must be Connected to Benefit

A person is only inadmissible if he or she makes a misrepresentation in connection with his or her own immigration benefit. If a person misrepresents a material fact in connection with another’s immigration benefit, then the person is not inadmissible for fraud or willful misrepresentation. [19] See Matter of M-R-, 6 I&N Dec. 259 (BIA 1954) (the procurement of documentation for the applicant's two children to facilitate their entry into the United States did not render the applicant himself inadmissible under former INA 212(a)(19)). However, fraud or willful misrepresentation made in connection with another’s immigration benefit may make the person inadmissible for alien smuggling. [20] See INA 212(a)(6)(E).

There may be situations in which a representative or a parent makes a misrepresentation on behalf of the applicant. The question then becomes whether the applicant himself or herself willfully allowed such an action.

D. Willfulness

The person is only inadmissible for fraud or willful misrepresentation if the false representation was willfully made.

1. Definition of Willfulness

The term “willfully” should be interpreted as knowinglyas distinguished from accidentally, inadvertently, or in a good faith belief that the factual claims are true. [21] See Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979). To find the element of willfulness, the officer must determine that the person had knowledge of the falsity of the misrepresentation, and therefore knowingly, intentionally, and deliberately presented false material facts. [22] See Matter of G-G-, 7 I&N Dec. 161 (BIA 1956), superseded in part by Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). See Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 1998) (Rosenberg, J., concurring and dissenting).

When determining the “willfulness” of a person’s false representation, the officer should consider the circumstances that existed at the time the benefit was issued. [23] See Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979) (finding that the applicant had not willfully misrepresented since he could have reasonably believed his actions were correct under the law at the time).

USCIS petitions and applications are signed “under penalty of perjury.” The person may also be interviewed under oath. By signing or by making statements under oath, the person therefore asserts his or her claims are truthful. If the evidence in the record subsequently shows that the claims are factually unsupported, that may indicate the applicant willfully misrepresented his or her claim(s).

2. Silence or Failure to Volunteer Information

A person’s silence or failure to volunteer information does not, in and of itself, constitute fraud or willful misrepresentation because silence itself does not establish a conscious concealment. [24] See Matter of G-, 6 I&N Dec. 9 (BIA 1953), superseded on other grounds by Matter of F-M-, 7 I&N Dec. 420 (BIA 1957). See 9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation, Differentiation Between Misrepresentation and Failure to Volunteer Information. Silence or omission can, however, lead to a finding of fraud or willful misrepresentation if it is clear from the evidence that the person consciously concealed information.

If the evidence shows that the person was reasonably aware of the nature of the information sought and knowingly, intentionally, and deliberately concealed information from the officer, then the officer should find that the applicant consciously concealed and willfully misrepresented a material fact.

Example:

An applicant is legally married but has lived apart from his spouse for 20 years. During that time apart, the applicant lived with another person for 10 years as domestic partners until the other person died. A few years later, having been in touch with his legal spouse by letter, the applicant states in his application for admission to the United States that he is coming to join his wife.

Although the applicant did not reveal the complications in his marital status during the past 20 years, the applicant was not specifically asked any questions relating to these facts. As a matter of law, the applicant is still married to the spouse, and there is no evidence that he married the spouse to obtain an immigration benefit. Since the applicant gave reasonably accurate and correct answers, his failure to disclose his complicated marital situation did not constitute conscious concealment of facts.

Example:

During World War II, a person was captured by Germans while serving in the Russian Army and forced to serve as an armed guard at a Nazi concentration camp. The person later applies for a visa and is questioned about his present and past memberships and affiliations, including any military service. The person discloses that he had served in the Russian army but does not mention his time as a guard at the concentration camp. When pressed for more on his military service, the person continues to present only information on service in the Russian army.

Since the person provided an unreasonably narrow response to a general question, it is likely that the person was fully aware that his time at the concentration camp was pertinent to the response and information sought by the officer. When the person provided only a partial response, he concealed information knowingly, intentionally, and deliberately. The person’s conscious concealment of facts, therefore, constitutes willful misrepresentation. [25] See Fedorenko v. United States, 449 U.S. 490 (1981).

3. Refusal to Respond to Questions

A person’s refusal to answer a question does not necessarily mean that he or she willfully made a false representation. However, refusal to answer a question during an admissibility determination could result in the officer finding that the applicant failed to establish admissibility. [26] It is the applicant’s burden to establish that he or she is not inadmissible. See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

4. Misrepresentation Made by a Person’s Agent

If the false representation is made by an applicant’s attorney or agent, the applicant will be held responsible if it is established that the applicant was aware of the action taken by the representative in furtherance of his or her application. This includes oral misrepresentations made at the border by someone assisting a person to enter illegally. Furthermore, a person cannot deny responsibility for any misrepresentation made on the advice of another unless it is established that the person lacked the capacity to exercise judgment. [27] See 9 FAM 302.9-4(B)(4), Interpretation of Term Willfully. For more information on factors the officer should consider when determining whether a person is capable of exercising judgment and committing intentional acts, see Subsection 5, Misrepresentations by Minors (Under 18) or those who are Mentally Incompetent [8 USCIS-PM J.3(D)(5)].

5. Misrepresentations by Minors (Under 18) or those who are Mentally Incompetent

The INA does not exempt a person from inadmissibility for fraud or willful misrepresentation solely based on age or mental incapacity. The BIA has not yet addressed in any precedent decision whether a minor is shielded from this inadmissibility on account of being a minor.

Both fraud and willful misrepresentation must be intentional acts. There may be cases in which the officer finds that a person, because of mental incompetence or young age, was incapable of independently forming an intent to defraud or misrepresent. In these cases, a person’s inability to commit intentional acts precludes a finding of inadmissibility for fraud or willful misrepresentation since the person could not have acted “willfully.”

The officer should consider all relevant factors when evaluating fraud or willful misrepresentation including the applicant’s:

Age;

Level of education;

Background;

Mental capacity;

Level of understanding;

Ability to appreciate the difference between true and false; and

Other relevant circumstances.

The fact that a misrepresentation occurred while the person was under 18 years of age, in particular, is not determinative. There is no categorical rule that someone under 18 cannot, as a matter of law, make a willful misrepresentation. A person may be able to claim, however, that, on the basis of the facts of his or her own case, he or she lacked the capacity necessary to form a willful intent to misrepresent a material fact.

If admissibility is an issue in a case, USCIS does not bear the burden of proving that the person is inadmissible. As long as there is at least some evidence that would permit a reasonable person to find an applicant inadmissible, the applicant must establish that the inadmissibility ground does not apply. For this reason, someone who appears to have made a willful misrepresentation of a material fact while under the age of 18 would have to prove his or her lack of capacity.

This burden of proof would also apply to someone who claimed a lack of capacity based on a reason other than age, such as cognitive or other disabilities.

If the evidence, clearly and beyond doubt, shows that the person did not have the capacity to form an intent to deceive, then the misrepresentation could not have been fraudulent. Similarly, if the evidence, clearly and beyond doubt, shows that the person did not have the capacity to know that the information was false, then the misrepresentation could not have been willful.

In these cases, the officer should not find the applicant inadmissible for fraud or willful misrepresentation.

6. Timely Retraction

As a defense to inadmissibility for fraud or willful misrepresentation, a person may show that he or she timely retracted or recanted the false statement. The effect of a timely retraction is that the misrepresentation is eliminated as if it had never happened. [28] See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). If a person timely retracts the statement, the person is not inadmissible for fraud or willful misrepresentation.

For the retraction to be effective, it has to be voluntary and timely. [29] “If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.” See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949). The applicant must correct his or her representation before being exposed by the officer or U.S. government official or before the conclusion of the proceeding during which he or she gave false testimony. A retraction can be voluntary and timely if made in response to an officer’s question during which the officer gives the applicant a chance to explain or correct a potential misrepresentation.

Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. [30] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). For example, an applicant’s recantation of the false testimony is neither voluntary nor timely if made a year later and only after it becomes apparent that the disclosure of the falsity of the statements is imminent. [31] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). A retraction or recantation is only timely if it is made in the same proceeding in which the person gives the false testimony or misrepresentation. [32] See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).

E. Materiality

1. Definition of Materiality

A false representation only renders a person inadmissible if it is material. A material misrepresentation is a false representation concerning a fact that is relevant to the person’s eligibility for an immigration benefit. [33] Officers may consult with field office leadership and Office of Chief Counsel for further assistance as needed to determine whether an applicant’s misrepresentation is material.

2. Test to Determine Materiality

The U.S. Supreme Court has developed a test to determine whether a misrepresentation is material: A concealment or a misrepresentation is material if it has a natural tendency to influence or was capable of influencing the decisions of the decision-making body. [34] See Kungys v. United States, 485 U.S. 759, 770 (1988) (proceeding to revoke a person’s naturalization). The misrepresentation is only material if it led to the person gaining some advantage or benefit to which he or she may not have been entitled under the true facts.

A misrepresentation has a natural tendency to influence the officer’s decision to grant the immigration benefit if:

The person would be inadmissible on the true facts; [35] See Fedorenko v. United States, 449 U.S. 490 (1981) (visa applicant who failed to disclose that he had been an armed guard at a concentration camp made a false statement that was material and is therefore inadmissible because disclosure of true facts would have made applicant ineligible for a visa). or

The misrepresentation tends to cut off a line of inquiry, which is relevant to the applicant’s eligibility and which might have resulted in a proper determination that he or she is inadmissible. [36] See Matter of S- and B-C-, 9 I&N Dec. 436, 447-49 (A.G. 1961), accord. Matter of Bosuego, 17 I&N Dec. 125 (BIA 1980). See Matter of Ng, 17 I&N Dec. 536 (BIA 1980). See Said v. Gonzales, 488 F.3d 668 (5th Cir. 2007) (though the court never reaches the issue, it is discussed).

The table below provides step-by-step guidelines to assist officers to determine whether a misrepresentation is material.

Guidelines for Determining whether Misrepresentation is Material

Step

If Yes, then…

If No, then…

Step 1: Consider whether the evidence in the record supports a finding that the applicant is (or was) inadmissible on the true facts.

Misrepresentation is Material

Proceed to Step 2

Step 2: Consider whether misrepresentation tended to shut off a line of inquiry, which was relevant to the applicant’s eligibility.

Proceed to Step 3

Misrepresentation is NOT Material

Step 3: If a relevant line of inquiry had been cut off, ask whether that inquiry might have resulted in a determination of ineligibility. (The applicant has the burden to show that it would not have resulted in ineligibility.)

Misrepresentation is Material

Misrepresentation is NOT Material

3. Harmless Misrepresentation

A misrepresentation that is not material because it is not relevant to an applicant’s eligibility for the benefit is considered a harmless misrepresentation. [37] See Matter of Martinez-Lopez, 10 I&N Dec. 409 (BIA 1964) (submission of a forged job offer in the United States was not material when the applicant was not otherwise inadmissible as a person likely to become a public charge). See Matter of Mazar, 10 I&N Dec. 79 (BIA 1962) (no materiality in the nondisclosure of membership in the Communist Party since the membership was involuntary and would not have resulted in a determination of inadmissibility). An applicant is not inadmissible for making a harmless misrepresentation even though the applicant misrepresented a fact. However, a harmless misrepresentation may still be taken into account when considering whether a benefit is warranted as a matter of discretion.

4. Misrepresenting Identity

A misrepresentation concerning a person’s identity almost always shuts off a line of inquiry because, at the outset, it prevents the adjudicating from scrutinizing a person’s eligibility for a benefit. [38] See Matter of S- and B-C-, 9 I&N Dec. 436, 448 (A.G. 1961). However, if the line of inquiry that is shut off would not have resulted in the denial of the benefit, then the misrepresentation is harmless. [39] See Matter of S- and B-C-, 9 I&N Dec. 436, 449 (A.G. 1961). As noted above, a harmless misrepresentation may still be taken into account when considering whether a benefit is warranted as a matter of discretion. The applicant bears the burden of proof to demonstrate that the relevant line of inquiry that was shut off by the misrepresentation of his or her identity was irrelevant to the original eligibility determination. [40] See Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961).

F. Fraud or Willful Misrepresentation Must Be Made to a U.S. Government Official

In addition to the other elements outlined above, the person must have made the fraud or willful misrepresentation to a U.S. government official in order for such act to rise to the level of an inadmissible offense. [41] See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994). Fraud or willful misrepresentation made to a private person or entity would not make one inadmissible under this ground. [42] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

G. Elements Only Applicable to Fraud

Fraud differs from willful misrepresentation in that there are generally two extra elements, in addition to the willful misrepresentation elements listed in Chapter 2(B), [43] See 8 USCIS-PM J.2(B). necessary for a fraud finding:

The willful misrepresentation was made with the intent to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer); and

The U.S. government official believed and acted upon the willful misrepresentation by granting the immigration benefit. [44] See Matter of G-G, 7 I&N Dec. 161 (BIA 1956). See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975).

Depending on whether the person successfully procured the immigration benefit, one or both elements are needed to establish inadmissibility based on fraud.

If the person successfully obtained the immigration benefit, the officer needs to establish both elements. If the person was unsuccessful in obtaining the immigration benefit, he or she may still be inadmissible for “seeking to procure” the benefit by fraud. In this case, the officer only needs to establish that the person intended to deceive a U.S. government official for the purpose of obtaining an immigration benefit to which the person was not entitled. [45] For a comparison of the elements required for a finding of fraud and a finding of willful misrepresentation, see Chapter 2, Overview of Fraud and Willful Misrepresentation, Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].

As stated previously, the distinction between fraud and willful misrepresentation is not of great practical importance since either fraud or a willful misrepresentation alone is sufficient to establish inadmissibility.

All of the elements necessary for a finding of willful misrepresentation are also needed for a finding of fraud. However, the opposite is not necessarily true: a person inadmissible for willful misrepresentation is not necessarily also inadmissible for fraud.

Therefore, once an officer determines that all the elements of willful misrepresentation are present, the person is inadmissible without any further determination of fraud.

Footnotes

1.

See INA 212(a)(6)(C)(i).

 

2.

The “reasonable person” standard is drawn from INS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency fact-finding must be accepted unless a reasonable fact-finder would necessarily conclude otherwise).

 

3.

See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

 

4.

See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

 

5.

See Matter of D- L- and A- M-, 20 I&N Dec. 409 (BIA 1991).

 

6.

See INS v. Elias-Zacarias, 502 U.S. 478 (1992).

 

7.

See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967). See Matter of M-, 3 I&N Dec. 777 (BIA 1949).

 

8.

See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

 

9.

See Matter of M-y R-, 6 I&N Dec. 315 (BIA 1954). See 9 FAM 302.9-4(B)(7), Interpretation of the Terms “Other Documentation” or “Other Benefit.”

 

10.

See 8 CFR 214.1.

 

11.

See INA 248. See 8 CFR 248.

 

12.

See INA 212(e).

 

13.

See INA 274A. See 8 CFR 274a.12.

 

14.

See INA 212(d)(5). See 8 CFR 212.5.

 

15.

See INA 240B. See 8 CFR 240.25 and 8 CFR 1240.26.

 

16.

See INA 245.

 

17.

See 9 FAM 302.9-4(B)(7), Interpretation of the Terms “Other Documentation” or “Other Benefit.

 

18.

See legacy Immigration and Naturalization Service General Counsel Opinion 91-39. See 9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation.

 

19.

See Matter of M-R-, 6 I&N Dec. 259 (BIA 1954) (the procurement of documentation for the applicant's two children to facilitate their entry into the United States did not render the applicant himself inadmissible under former INA 212(a)(19)).

 

20.

See INA 212(a)(6)(E).

 

21.

See Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979).

 

22.

See Matter of G-G-, 7 I&N Dec. 161 (BIA 1956), superseded in part by Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). See Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 1998) (Rosenberg, J., concurring and dissenting).

 

23.

See Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979) (finding that the applicant had not willfully misrepresented since he could have reasonably believed his actions were correct under the law at the time).

 

24.

See Matter of G-, 6 I&N Dec. 9 (BIA 1953), superseded on other grounds by Matter of F-M-, 7 I&N Dec. 420 (BIA 1957). See 9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation, Differentiation Between Misrepresentation and Failure to Volunteer Information.

 

25.

See Fedorenko v. United States, 449 U.S. 490 (1981).

 

26.

It is the applicant’s burden to establish that he or she is not inadmissible. See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

 

27.

See 9 FAM 302.9-4(B)(4), Interpretation of Term Willfully. For more information on factors the officer should consider when determining whether a person is capable of exercising judgment and committing intentional acts, see Subsection 5, Misrepresentations by Minors (Under 18) or those who are Mentally Incompetent [8 USCIS-PM J.3(D)(5)].

 

28.

See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)).

 

29.

“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.” See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949).

 

30.

See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).

 

31.

See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).

 

32.

See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).

 

33.

Officers may consult with field office leadership and Office of Chief Counsel for further assistance as needed to determine whether an applicant’s misrepresentation is material.

 

34.

See Kungys v. United States, 485 U.S. 759, 770 (1988) (proceeding to revoke a person’s naturalization).

 

35.

See Fedorenko v. United States, 449 U.S. 490 (1981) (visa applicant who failed to disclose that he had been an armed guard at a concentration camp made a false statement that was material and is therefore inadmissible because disclosure of true facts would have made applicant ineligible for a visa).

 

36.

See Matter of S- and B-C-, 9 I&N Dec. 436, 447-49 (A.G. 1961), accord. Matter of Bosuego, 17 I&N Dec. 125 (BIA 1980). See Matter of Ng, 17 I&N Dec. 536 (BIA 1980). See Said v. Gonzales, 488 F.3d 668 (5th Cir. 2007) (though the court never reaches the issue, it is discussed).

 

37.

See Matter of Martinez-Lopez, 10 I&N Dec. 409 (BIA 1964) (submission of a forged job offer in the United States was not material when the applicant was not otherwise inadmissible as a person likely to become a public charge). See Matter of Mazar, 10 I&N Dec. 79 (BIA 1962) (no materiality in the nondisclosure of membership in the Communist Party since the membership was involuntary and would not have resulted in a determination of inadmissibility).

 

38.

See Matter of S- and B-C-, 9 I&N Dec. 436, 448 (A.G. 1961).

 

39.

See Matter of S- and B-C-, 9 I&N Dec. 436, 449 (A.G. 1961). As noted above, a harmless misrepresentation may still be taken into account when considering whether a benefit is warranted as a matter of discretion.

 

40.

See Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961).

 

41.

See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

 

42.

See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

 

43.

See 8 USCIS-PM J.2(B).

 

44.

See Matter of G-G, 7 I&N Dec. 161 (BIA 1956). See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975).

 

45.

For a comparison of the elements required for a finding of fraud and a finding of willful misrepresentation, see Chapter 2, Overview of Fraud and Willful Misrepresentation, Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].

 

Chapter 4 - Exemptions, Exceptions, and Waiver Authority

Part K - False Claim to U.S. Citizenship

Chapter 1 - Purpose and Background

A. Purpose

U.S. citizenship confers important rights and responsibilities, including the right to vote and to hold public office. U.S. citizens also have an unqualified right to live in the United States. In recognition of these principles, Congress provided a specific ground of inadmissibility to address when a foreign national falsely claims to be a U.S. citizen for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law. Indeed, the immigration consequences for falsely claiming U.S. citizenship are severe. [1] Falsely claiming U.S. citizenship is also a criminal offense under 18 U.S.C. 911. This Part K does not address the criminal consequences of falsely claiming U.S. citizenship but addresses when a criminal conviction is evidence for purposes of the inadmissibility determination. The foreign national is permanently barred from admission. [2] See INA 212(d)(3). If the foreign national needs a nonimmigrant visa, then the Department of State (DOS) must concur in the waiver.

There are exceptions and waivers to this ground of inadmissibility. The Department of Homeland Security has the authority to waive inadmissibility for purposes of a nonimmigrant admission. A waiver is not available, however, to most foreign nationals seeking lawful permanent resident (LPR) status.

B. Background

Congress added the ground of inadmissibility for falsely claiming U.S. citizenship with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [3] See Pub. L. 104-208 (September 30, 1996). Prior to the passage of IIRIRA, a foreign national who falsely claimed U.S. citizenship for purposes of immigration benefits was inadmissible because of fraud and willful misrepresentation. [4] See INA 212(a)(6)(C). For more information on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. Concerned about non-citizens’ increased use of fraud to access various federal benefits, [5] See H.R. Rep. 104-861, p. 50 (Sept. 28, 1996). See 142 Cong. Rec. S11503 (daily ed. September 27, 1996) (statement of Sen. Hatch). See H.R. Rep. 104-828, p. 199 (Sept. 24, 1996) (Conf. Rep.) (Joint Explanatory Statement). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). Congress divided the provision into two separate inadmissibility grounds including: [6] See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

Fraud or willful misrepresentation made in connection with obtaining an immigration benefit; [7] See INA 212(a)(6)(C)(i). and

False claim to U.S. citizenship made on or after September 30, 1996 in connection with obtaining any benefit or for any purpose under federal or state law, including immigration law. [8] See INA 212(a)(6)(C)(ii). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

These two grounds differ significantly. This part only addresses the inadmissibility determination for false claims to U.S. citizenship made on or after September 30, 1996, the date that the new inadmissibility ground for falsely claiming U.S. citizenship became effective.

The officer cannot make a finding of inadmissibility under the false claim to U.S. citizenship ground of inadmissibility for foreign nationals who made a false claim to U.S. citizenship prior to September 30, 1996. [9] See INA 212(a)(6)(C)(ii). See Section 344(c) of IIRIRA, Pub. L. 104-208, 110 Stat. 3009-546, 3009-637 (September 30, 1996). In those cases, the officer must analyze the foreign national’s inadmissibility according to the fraud and willful misrepresentation ground of inadmissibility. [10] For more information, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

This distinction is important, because foreign nationals who made a false claim to U.S. citizenship before September 30, 1996, may apply for a waiver of the ground of inadmissibility for fraud and misrepresentation. [11] See INA 212(a)(6)(C)(i) and INA 212(i). Foreign nationals who made a false claim to U.S. citizenship on or after September 30, 1996, generally are not eligible for waivers if they seek permanent resident status. [12] Depending on the immigration benefit the applicant is seeking, the applicant may have a waiver available; however, foreign nationals seeking to immigrate as immediate relatives, under a preference category, or based on the diversity visa lottery do not have a waiver available.

The chart below outlines the distinctions between the inadmissibility grounds of fraud or willful misrepresentation [13] See INA 212(a)(6)(C)(i). and falsely claiming U.S. citizenship. [14] See INA 212(a)(6)(C)(ii).

Comparing Fraud or Willful Misrepresentation

and False Claim to U.S. Citizenship

Inadmissibility

Ground

Offense

Description

Made To

Waiver

Fraud or Willful Misrepresentation

INA 212(a)(6)(C)(i)

Fraud or willful misrepresentation anytime or false claim to U.S. citizenship made before September 30, 1996

Misrepresentation material for any purpose or benefit under INA

(immigration benefit)

Government official exercising authority under the immigration and nationality laws [15] For example, a Customs and Border Protection, Immigration and Customs Enforcement, or USCIS officer, a consular officer, or an immigration judge.

Waiver available for most applicants

False Claim to U.S. Citizenship

INA 212(a)(6)(C)(ii)

False claim to U.S. citizenship made on or after September 30, 1996

Misrepresentation of U.S. citizenship for any purpose or benefit under INA or any other federal or state law

Any government or non-government official [16] For example, a private employer, lender, school, or other entity.

Waiver not available for most applicants

C. Scope

This guidance addresses inadmissibility for falsely claiming U.S. citizenship [17] See INA 212(a)(6)(C)(ii). Inadmissibility for fraud or willful misrepresentation or falsely claiming U.S. citizenship before September 30, 1996, is a separate inadmissibility ground. See INA 212(a)(6)(C)(i). for any purpose or benefit under the INA or any other federal or state law, made on or after September 30, 1996.

D. Legal Authorities

INA 212(a)(6)(C)(ii) – Illegal entrants and immigration violators – falsely claiming citizenship

Footnotes

1.

Falsely claiming U.S. citizenship is also a criminal offense under 18 U.S.C. 911. This Part K does not address the criminal consequences of falsely claiming U.S. citizenship but addresses when a criminal conviction is evidence for purposes of the inadmissibility determination.

 

2.

See INA 212(d)(3). If the foreign national needs a nonimmigrant visa, then the Department of State (DOS) must concur in the waiver.

 

3.

See Pub. L. 104-208 (September 30, 1996).

 

4.

See INA 212(a)(6)(C). For more information on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

 

5.

See H.R. Rep. 104-861, p. 50 (Sept. 28, 1996). See 142 Cong. Rec. S11503 (daily ed. September 27, 1996) (statement of Sen. Hatch). See H.R. Rep. 104-828, p. 199 (Sept. 24, 1996) (Conf. Rep.) (Joint Explanatory Statement). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

 

6.

See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

 

7.

See INA 212(a)(6)(C)(i).

 

8.

See INA 212(a)(6)(C)(ii). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

 

9.

See INA 212(a)(6)(C)(ii). See Section 344(c) of IIRIRA, Pub. L. 104-208, 110 Stat. 3009-546, 3009-637 (September 30, 1996).

 

10.

For more information, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

 

11.

See INA 212(a)(6)(C)(i) and INA 212(i).

 

12.

Depending on the immigration benefit the applicant is seeking, the applicant may have a waiver available; however, foreign nationals seeking to immigrate as immediate relatives, under a preference category, or based on the diversity visa lottery do not have a waiver available.

 

13.

See INA 212(a)(6)(C)(i).

 

14.

See INA 212(a)(6)(C)(ii).

 

15.

For example, a Customs and Border Protection, Immigration and Customs Enforcement, or USCIS officer, a consular officer, or an immigration judge.

 

16.

For example, a private employer, lender, school, or other entity.

 

17.

See INA 212(a)(6)(C)(ii). Inadmissibility for fraud or willful misrepresentation or falsely claiming U.S. citizenship before September 30, 1996, is a separate inadmissibility ground. See INA 212(a)(6)(C)(i).

 

Chapter 2 - Determining False Claim to U.S. Citizenship

For a foreign national to be inadmissible based on false claim to U.S. citizenship, an officer must find all of the following elements:

The foreign national made a representation of U.S. citizenship;

The representation was false;

The foreign national made the false representation knowingly; and

The foreign national made the false representation for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law.

A. Overview of Admissibility Determination

The officer should examine all facts and circumstances when evaluating inadmissibility for falsely claiming U.S. citizenship. The officer should follow the steps in the table below to determine inadmissibility.

Overview of Admissibility Determination

Step

For More Information

Step 1

Determine whether foreign national claimed to be a U.S. citizen.

Section B, Claim to U.S. Citizenship [8 USCIS-PM K.2(B)]

Step 2

Determine whether foreign national made the representation on or after September 30, 1996.

Section C, Claim Made On or After September 30, 1996 [8 USCIS-PM K.2(C)]

Step 3

Determine whether the representation was false.

Section D, Knowledge that Claim Was False [8 USCIS-PM K.2(D)]

Step 4

Determine whether foreign national knew the claim to U.S. citizenship was false. [1] Falsely represented includes whether the applicant misrepresented the fact that the applicant is a citizen of the United States with the knowledge that the representation is not true.

Section D, Knowledge that Claim Was False [8 USCIS-PM K.2(D)]

Step 5

Determine whether foreign national’s false claim to U.S. citizenship was for the purpose of obtaining a benefit under the INA or under any other federal or state law.

Section E, Purpose or Benefit under INA or Any State or Federal Law [8 USCIS-PM K.2(E)]

Step 6

Determine whether foreign national timely retracted the false claim to U.S. citizenship.

Section F, Timely Retraction [8 USCIS-PM K.2(F)]

Step 7

Determine whether foreign national is exempt from inadmissibility because a statutory exception applies. [2] See INA 212(a)(6)(C)(ii)(II).

Chapter 4, Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)] and Section B, Exception [8 USCIS-PM K.4(B)]

Step 8

Determine whether a waiver of inadmissibility is available.

Chapter 4, Exceptions and Waivers, Section C, Waiver [8 USCIS-PM K.4(C)]

B. Claim to U.S. Citizenship

An officer should first determine whether a foreign national claimed to be a U.S. citizen.

1. Form of Claim

A foreign national may claim to be a U.S. citizen in oral interviews, written applications, or by submitting evidence. It is irrelevant whether or not the foreign national made the claim under oath.

2. Representation Before Government Official Not Necessary

Unlike inadmissibility for fraud and misrepresentation, [3] See INA 212(a)(6)(C)(i). a foreign national does not have to make the claim of U.S. citizenship to a U.S. government official exercising authority under the immigration and nationality laws. The foreign national can make the claim to any other federal, state, or local official, or even to a private person, such as an employer. [4] For example, the foreign national could make a false claim to U.S. citizenship to comply with the employment verification requirements under INA 274A.

3. Distinction between a U.S. Citizen and a U.S. National

U.S. citizen status is related to, but is not the same as, U.S. national status. A U.S. national is any person owing permanent allegiance to the United States and may include a U.S. citizen or a non-citizen U.S. national. [5] See INA 101(a)(22). A non-citizen U.S. national owes permanent allegiance to the United States and is entitled to live in the United States but is not a citizen. [6] See INA 308. As of 2014, American Samoa (including Swains Island) is the only outlying possession of the United States, as defined under INA 101(a)(29). See Volume 12, Citizenship and Naturalization [12 USCIS-PM]. A U.S. citizen is any person born in the United States or who otherwise acquires U.S. citizenship at or after birth. [7] See U.S. Constitution, amend. XIV. See INA 301. See INA 309. See Volume 12, Citizenship and Naturalization [12 USCIS-PM].

4. Claiming to be a U.S. National

A foreign national who falsely claims to be a U.S. national but not a U.S. citizen is not inadmissible for false claim to U.S. citizenship. [8] See INA 212(a)(6)(C)(ii)(I). The foreign national, however, may be inadmissible for fraud or willful misrepresentation if all other elements for that ground are met. [9] For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. See INA 212(a)(6)(C). See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

The Employment Eligibility Verification form (Form I-9) used prior to April 3, 2009, asked the person completing it whether the person is a “citizen or national” of the United States and required checking a box corresponding to the answer. The fact that a foreign national marked “Yes” on an earlier edition of the Employment Eligibility Verification does not necessarily subject the foreign national to inadmissibility for falsely claiming U.S. citizenship, because the earlier edition of the form did not distinguish a claim of “nationalityfrom a claim of “citizenship.” [10] In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) and in Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box on Form I-9. Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. See Matter of Oduor, 2005 WL 1104203 (BIA 2005). See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007).

An affirmative answer to this question does not, by itself, provide sufficient evidence that would permit a reasonable person to find the foreign national falsely represented U.S. citizenship because of the question’s ambiguity. [11] See U.S. v. Karaouni, 379 F.3d 139 (9th Cir. 2004).


In these cases, the applicant must demonstrate to an officer that he or she understands the distinction between a U.S. citizen and non-U.S. citizen national. [12] In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004), Matter of Oduor, 2005 WL 1104203 (BIA 2005), and Matter of Soriano-Salas, 2007 WL 2074526 (BIA, June 5, 2007), for example, the evidence showed that the applicant had no idea what it meant to be a non-citizen national and that the applicant intended to claim that the applicant was a citizen. The applicant has the burden of showing that he or she was claiming to be a non-U.S. citizen national as opposed to a U.S. citizen. The applicant’s inadmissibility for a false claim to U.S. citizenship depends on whether the applicant meets the burden of showing that he or she intended to claim to be a U.S. national when completing the Form I-9.

This inquiry is not necessary if the applicant used the April 3, 2009, edition or any later edition of the Form I-9, because these editions clearly differentiate between “Citizen of the United States” and “Non-citizen National of the United States.”

C. Claim Made On or After September 30, 1996 [13] INA 212(a)(6)(C)(ii)(I) makes a foreign national subject to removal as inadmissible. INA 237(a)(3)(D)(i) is identical but applies to a foreign national who has been admitted but has become removable on account of the false representation. Also, if a foreign national falsely claims citizenship by voting, that foreign national would also be inadmissible under INA 212(a)(10)(D), which declares a foreign national inadmissible who votes in violation of any federal, state, or local law.

An officer should determine whether the claim to U.S. citizenship occurred on or after September 30, 1996. [14] The date this inadmissibility ground became effective. See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (September 30, 1996). If an applicant claimed U.S. citizenship before September 30, 1996, the applicant may be inadmissible for fraud or willful misrepresentation [15] See INA 212(a)(6)(C)(i). For more information on inadmissibility based on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. but not for falsely claiming U.S. citizenship. [16] See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)].

D. Knowledge that Claim Was False

If an applicant claimed to be a U.S. citizen on or after September 30, 1996, then an officer should determine whether the claim was false and whether the applicant knew the claim was false.

1. False Representation

A false representation or misrepresentation is an assertion or manifestation that is not in accordance with the true facts.

2. Knowledge of False Claim

For USCIS to consider the claim to U.S. citizenship to be false, the applicant must knowingly misrepresent the fact that the applicant is a citizen of the United States. The applicant must have known that he or she was not a U.S. citizen at the time he or she made the claim. [17] See 9 FAM 302.9-5, Falsely Claiming Citizenship - INA 212(a)(6)(C)(ii).

Knowledge that the claim was false, however, is not an element that the government must prove. As long as there is some evidence in the record that reasonably calls the foreign national’s admissibility into question, the foreign national has the burden to prove the foreign national is not inadmissible.

The foreign national’s assertion that he or she did not know the claim to citizenship was false is therefore a defense. The foreign national must establish clearly and beyond a doubt that he or she did not know the claim was false. The foreign national’s lack of knowledge about the claim being false is an individualized inquiry and depends on the unique circumstances of each particular case.

3. Refusal to Respond to Questions [18] For more information, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness [8 USCIS-PM J.3(D)].

A foreign national’s refusal to answer a question does not necessarily mean that the foreign national knowingly made a false representation. A foreign national’s refusal to answer an officer’s question during an admissibility determination, however, could result in the officer finding that the applicant failed to establish admissibility. [19] It is the applicant’s burden to establish that he or she is not inadmissible. See​ ​INA 291​.​ ​See​ Matter of Arthur​, 16 I&N Dec. 558 (BIA 1978).​

4. Lack of Capacity

Factors to Consider

Inherent in the knowledge requirement is that the foreign national has the capacity for such knowledge. An officer cannot make a finding of inadmissibility for false claim to U.S. citizenship if the foreign national lacks the capacity to knowingly make a false claim to U.S. citizenship.

An officer should not find that a foreign national lacks capacity simply because the foreign national does not know that a false claim to U.S. citizenship makes him or her inadmissible. An officer should find a lack of capacity only if the evidence shows that the foreign national was incapable of understanding the nature and consequences of the false claim at the time of the alleged false claim.

The officer should consider all relevant factors when evaluating whether the foreign national has the capacity to make a knowingly false claim to U.S. citizenship, including the foreign national’s:

Age;

Level of education;

Background;

Mental capacity;

Level of understanding;

Ability to appreciate the difference between true and false; and

Other relevant circumstances.

False Claim Made while Under Age 18

A lack of capacity claim may arise most often in the case of a foreign national who made a false claim to U.S. citizenship while under the age of 18. The fact that the foreign national was not yet 18 years of age is insufficient by itself to establish a lack of capacity.

A capacity assessment, in this instance, relies on determining whether the foreign national who made the false claim while under age 18 had the maturity and the judgment to understand and appreciate the nature and consequences of his or her actions at the time the false claim was made.

Sufficient capacity for knowledge at the time of the claim is not an element that the government must prove. As long as there is some evidence in the record that reasonably calls the foreign national’s admissibility into question, the foreign national has the burden to prove that he or she is not inadmissible.

​The foreign national
may establish that he or she did not have the capacity to judge the nature and consequences of a false citizenship claim due to age or cognitive impairment. The foreign national must establish the lack of capacity clearly and beyond doubt. The foreign national’s capacity for knowledge is an individualized inquiry, and it depends on the unique circumstances of each particular case.

E. Purpose or Benefit under INA or Any State or Federal Law

1. Any Purpose or Benefit

The law only makes a foreign national inadmissible for falsely claiming U.S. citizenship if the foreign national falsely represents him or herself to be a citizen of the United States “for any purpose or benefit” under the INA, including INA 274A, or any other federal or state law. [20] See INA 212(a)(6)(C)(ii).

The provision for inadmissibility based on false claim to U.S. citizenship [21] See INA 212(a)(6)(C)(ii). uses “or” rather than “and” as the conjunction between “purpose” and “benefit.” There may be cases in which the facts show that the foreign national intended to achieve both a purpose and obtain a benefit. However, a foreign national can also be inadmissible based on a false claim made with the specific intent to achieve an improper purpose, even if it did not involve an application for any specific benefit.

Furthermore, U.S. citizenship must affect or matter to the purpose or benefit sought. That is, U.S. citizenship must be material to the purpose or benefit sought. [22] For more information on materiality, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)].

In sum, even though a foreign national may have falsely claimed U.S. citizenship, he or she is only inadmissible if:

The foreign national made the false claim with the subjective intent of obtaining a benefit or achieving a purpose under the INA or any other federal or state law, as shown by direct or circumstantial evidence; and

U.S. citizenship affects or matters to the purpose or benefit sought, that is, it must be material to obtaining the benefit or achieving the purpose.

2. Intent to Obtain a Benefit [23] See Matter of Richmond, 26 I&N Dec. 779, 787-88 (BIA 2016).

Whether a foreign national made the false claim with the specific intent of obtaining a benefit is a question of fact and dependent on the circumstances of each case. The foreign national has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of obtaining the benefit. [24] See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

Whether U.S. citizenship actually affects or matters to the benefit sought is determined objectively. If the benefit requires U.S. citizenship as part of eligibility, then the foreign national’s false claim is material. [25] See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). If the claim to citizenship has a natural tendency to influence the official decision to grant or deny the benefit sought, the claim is material. [26] See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit. It is the foreign national’s burden to show that U.S. citizenship is not relevant to obtaining the benefit.

If U.S. citizenship is irrelevant to the benefit at issue, the foreign national’s false claim to U.S. citizenship does not make him or her inadmissible unless the evidence provides a basis for finding that the foreign national made the false claim to achieve a purpose under federal or state law.

For purposes of a false claim to U.S. citizenship, [27] See INA 212(a)(6)(C)(ii). a benefit must be identifiable and enumerated in the INA or any other federal or state law.

A benefit includes but is not limited to:

A U.S. passport; [28] See Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009). See Matter of Villanueva, 19 I&N Dec. 101, 103 (BIA 1984).

Entry into the United States; [29] See Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009). See Jamieson v. Gonzales, 424 F.3d 765 (8th Cir. 2005). See Reid v. INS, 420 U.S. 619 (1975). and

Obtaining employment, loans, or any other benefit under federal or state law, if citizenship is a requirement for eligibility. [30] See Dakura v. Holder, 772 F.3d 994 (4th Cir. 2014). See Crocock v. Holder, 670 F.3d 400, 403 (2nd Cir. 2012). See Castro v. Att'y Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). See Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008). See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007). See Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007). See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

3. Intent to Achieve a Purpose

Whether a foreign national made the false claim with the specific intent of achieving a purpose is a question of fact and dependent on the circumstances of each case. The foreign national has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of achieving the purpose. [31] See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

Whether U.S. citizenship actually affects or matters to the purpose is determined objectively. U.S. citizenship affects or matters to the purpose, and is material, if it has a natural tendency to influence the applicant’s ability to achieve the purpose. [32] See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit. It is the foreign national’s burden to show that U.S. citizenship is not relevant to achieving the purpose.

If U.S. citizenship is irrelevant to achieving the purpose at issue, the foreign national’s false claim to U.S. citizenship does not make him or her inadmissible unless the evidence provides a basis for finding that the foreign national made the false claim to obtain a benefit under federal or state law.

The term “purpose” includes avoiding negative legal consequences. Negative legal consequences that a foreign national might seek to avoid by falsely claiming U.S. citizenship include but are not limited to:

Removal proceedings; [33] See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

Inspection by immigration officials; [34] See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Matter of F-, 9 I&N Dec. 54 (BIA 1960). and

Prohibition on unauthorized employment. [35] See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007).

Purpose, however, is not limited to avoiding negative legal consequences. The purpose may also be something more positive. For example, a false claim would be for an improper purpose if a benefit under federal or state law is not restricted to U.S. citizens, but a foreign national falsely claims to be a U.S. citizen when seeking the benefit to avoid an eligibility or evidentiary requirement that does not apply to citizens seeking the benefit.

Example

In the course of an arrest for disorderly conduct, a foreign national falsely claimed that he was born in Puerto Rico. However, the facts of the case did not support that he had falsely claimed U.S. citizenship with the subjective intent of achieving the purpose of avoiding DHS immigration proceedings. Furthermore, the police could not have conferred such a result, and the foreign national’s status as a U.S. citizen was immaterial to the arrest proceedings because the police treated U.S. citizens and foreign nationals the same. [36] See Castro v. Attorney Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). According to the court, the Immigration Judge’s (IJ) and the BIA conclusion that Castro made a false claim of U.S. citizenship for the purpose of evading detection by immigration authorities seemed to have been built solely on the assumption that this was a reasonable purpose to ascribe to Castro because he was undocumented. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. The purpose imputed by the BIA to Castro would have applied to virtually any false claim to citizenship made by a foreign national unlawfully present in the country because the absence of legal status always provides a reason to wish to avoid the attention of DHS. Therefore, the construction threatened to read the limiting language—the requirement that the “purpose or benefit” be “under” the INA or any other federal or state law—out of INA 212(a)(6)(C)(ii) entirely.

Example

A foreign national stated twice during DHS interrogation that he was a U.S. citizen. He failed to show he had not made this claim to U.S. citizenship with the subjective intent of achieving the purpose of avoiding removal proceedings. He also failed to show that citizenship did not affect removal proceedings. Therefore, the foreign national was inadmissible for falsely claiming U.S. citizenship. [37] See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

Example

An employer made a job offer to a foreign national who did not have employment authorization. In completing the USCIS Form I-9, the foreign national marked the box claiming U.S. citizenship with the intent to avoid the need to obtain and present a valid and unexpired employment authorization document. The foreign national is inadmissible since the foreign national made the false claim for the purpose of avoiding additional requirements under the immigration laws. [38] See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

Example

A foreign national applied for a license under state law. The eligibility is not restricted to U.S. citizens but a foreign national must submit additional evidence that a U.S. citizen is not required to submit. Specifically, a foreign national must present evidence of lawful status or at least authorization to accept employment. The foreign national falsely claimed citizenship in order to avoid the additional evidentiary requirements. The foreign national is inadmissible since the foreign national made the false claim for the purpose of avoiding additional requirements under state law. [39] This conclusion is consistent with the rationale of Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

4. Representation Must Be for Own Benefit

A foreign national is only inadmissible if the foreign national makes a misrepresentation for the foreign national’s own benefit. If a foreign national misrepresents another foreign national’s citizenship, the foreign national that made the misrepresentation is not inadmissible for falsely claiming U.S. citizenship. [40] See Department of State Cable (no. 97-State-174342) (September 17, 1997). However, falsely claiming citizenship on behalf of another foreign national may make the foreign national inadmissible for alien smuggling. See Matter of M-R, 6 I&N Dec. 259, 260 (BIA 1954).

5. For Purpose of Coming into the United States

A foreign national who makes a successful false claim to U.S. citizenship or nationality at the port-of-entry and who is allowed into the United States has not been admitted. In order for a foreign national to be admitted, CBP must have authorized the foreign national to enter the United States after the foreign national came to the port-of-entry and sought admission as a foreign national. [41] See Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled” [7 USCIS-PM B.2(A)(2)].

However, the law and precedents relating to what qualifies as the admission of a foreign national do not apply to U.S. citizens and nationals. U.S. citizens and nationals are not subject to the same inspection process as foreign nationals. If CBP believes the person is a U.S. citizen or national, CBP cannot prevent the person’s return to the United States. It is well-settled that someone who is allowed to come into the United States as a U.S. citizen or national has not been admitted. [42] See Reid v. INS, 420 U.S. 619 (1975). See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Mattter of S-, 9 I&N Dec. 599 (BIA 1962).

Therefore, a foreign national who comes into the United States under a false claim to U.S. citizenship is not only inadmissible for falsely claiming U.S. citizenship, but may also be inadmissible as a foreign national who is in the United States without inspection and admission or parole. [43] Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors in INA 101(a)(13)(C) is present. See Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998). Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors in INA 101(a)(13)(C) is present, the foreign national is not inspected as an arriving alien. If the foreign national makes a false claim to LPR status at a port-of-entry and if the foreign national is permitted to enter, then the foreign national has not been admitted for purposes of INA 101(a)(13)(A).

A foreign national who comes into the United States based on a false claim to U.S. nationality is not inadmissible under the provision relating to false claims to citizenship. [44] See INA 212(a)(6)(C)(ii)(I). However, the person may be inadmissible as a foreign national who is in the United States without inspection and admission or parole.

6. False Claim Made by an Agent or Representative

If an applicant’s attorney or agent makes the false representation, the applicant is held responsible if it is established that the applicant was aware of the action taken by the representative in furtherance of the applicant’s benefit application. This includes oral misrepresentations made at the border by a person assisting a foreign national to enter illegally. Furthermore, a foreign national cannot deny responsibility for any misrepresentation made on the advice of another person unless the foreign national establishes that he or she lacked the capacity to exercise judgment. [45] For more information, see Section D, Knowledge that Claim Was False, Subsection 4, Lack of Capacity [8 USCIS-PM K.2(D)(4)].

F. Timely Retraction


​Case law relating to the inadmissibility ground for fraud or willful misrepresentation has long recognized that a foreign national is not inadmissible if he or she made a timely retraction of the fraud or misrepresentation.
[46] See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). See 9 FAM 302.9-4(B)(3)(f), Timely Retraction. If a foreign national timely retracts the statement, it acts as a defense to the inadmissibility ground. A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened.

In principle, a foreign national might also timely retract a false claim to U.S. citizenship. If the foreign national does so, he or she would not be inadmissible for this inadmissibility ground. The retraction has to be voluntary and timely in order to be effective. [47] “If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.” See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949). The applicant must correct the representation before an officer or U.S. government official challenges the applicant’s truthfulness and before the conclusion of the proceeding during which the applicant gave false testimony. A retraction can be voluntary and timely if made in response to an officer’s question during which the officer gives the applicant a chance to explain or correct a potential misrepresentation.

Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. [48] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). For example, an applicant’s recantation of the false testimony is neither voluntary nor timely if made a year later and only after it becomes apparent that the disclosure of the falsity of the statements is imminent. [49] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). A retraction or recantation can only be timely if the foreign national makes it in the same proceeding in which the foreign national gives the false testimony or misrepresentation. [50] See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).

​Further, a retraction or recantation of a false claim to U.S. citizenship is only timely if the foreign national makes it in the same proceeding in which he or she made the false claim. For example, disclosing in an adjustment application that one falsely claimed to be a citizen in completing a
Form I-9, registering to vote, or seeking any other benefit would not be a timely retraction. The false claim was complete when the foreign national submitted the Form I-9, registered to vote, or sought the other benefit. The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding.

Footnotes

1.

Falsely represented includes whether the applicant misrepresented the fact that the applicant is a citizen of the United States with the knowledge that the representation is not true.

 

2.

See INA 212(a)(6)(C)(ii)(II).

 

3.

See INA 212(a)(6)(C)(i).

 

4.

For example, the foreign national could make a false claim to U.S. citizenship to comply with the employment verification requirements under INA 274A.

 

5.

See INA 101(a)(22).

 

6.

See INA 308. As of 2014, American Samoa (including Swains Island) is the only outlying possession of the United States, as defined under INA 101(a)(29). See Volume 12, Citizenship and Naturalization [12 USCIS-PM].

 

7.

See U.S. Constitution, amend. XIV. See INA 301. See INA 309. See Volume 12, Citizenship and Naturalization [12 USCIS-PM].

 

8.

See INA 212(a)(6)(C)(ii)(I).

 

9.

For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. See INA 212(a)(6)(C). See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

 

10.

In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) and in Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box on Form I-9. Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. See Matter of Oduor, 2005 WL 1104203 (BIA 2005). See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007).

 

11.

See U.S. v. Karaouni, 379 F.3d 139 (9th Cir. 2004).

 

12.

In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004), Matter of Oduor, 2005 WL 1104203 (BIA 2005), and Matter of Soriano-Salas, 2007 WL 2074526 (BIA, June 5, 2007), for example, the evidence showed that the applicant had no idea what it meant to be a non-citizen national and that the applicant intended to claim that the applicant was a citizen.

 

13.

INA 212(a)(6)(C)(ii)(I) makes a foreign national subject to removal as inadmissible. INA 237(a)(3)(D)(i) is identical but applies to a foreign national who has been admitted but has become removable on account of the false representation. Also, if a foreign national falsely claims citizenship by voting, that foreign national would also be inadmissible under INA 212(a)(10)(D), which declares a foreign national inadmissible who votes in violation of any federal, state, or local law.

 

14.

The date this inadmissibility ground became effective. See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (September 30, 1996).

 

15.

See INA 212(a)(6)(C)(i). For more information on inadmissibility based on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

 

16.

See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)].

 

17.

See 9 FAM 302.9-5, Falsely Claiming Citizenship - INA 212(a)(6)(C)(ii).

 

18.

For more information, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness [8 USCIS-PM J.3(D)].

 

19.

It is the applicant’s burden to establish that he or she is not inadmissible. See​ ​INA 291.​ ​See​ Matter of Arthur​, 16 I&N Dec. 558 (BIA 1978).​

 

20.

See INA 212(a)(6)(C)(ii).

 

21.

See INA 212(a)(6)(C)(ii).

 

22.

For more information on materiality, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)].

 

23.

See Matter of Richmond, 26 I&N Dec. 779, 787-88 (BIA 2016).

 

24.

See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

 

25.

See Kungys​ v. United States​, 485 U.S. 759, 770 (1988).

 

26.

See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit.

 

27.

See INA 212(a)(6)(C)(ii).

 

28.

See Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009). See Matter of Villanueva, 19 I&N Dec. 101, 103 (BIA 1984).

 

29.

See Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009). See Jamieson v. Gonzales, 424 F.3d 765 (8th Cir. 2005). See Reid v. INS, 420 U.S. 619 (1975).

 

30.

See Dakura v. Holder, 772 F.3d 994 (4th Cir. 2014). See Crocock v. Holder, 670 F.3d 400, 403 (2nd Cir. 2012). See Castro v. Att'y Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). See Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008). See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007). See Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007). See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

 

31.

See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

 

32.

See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit.

 

33.

See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

 

34.

See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Matter of F-, 9 I&N Dec. 54 (BIA 1960).

 

35.

See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007).

 

36.

See Castro v. Attorney Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). According to the court, the Immigration Judge’s (IJ) and the BIA conclusion that Castro made a false claim of U.S. citizenship for the purpose of evading detection by immigration authorities seemed to have been built solely on the assumption that this was a reasonable purpose to ascribe to Castro because he was undocumented. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. The purpose imputed by the BIA to Castro would have applied to virtually any false claim to citizenship made by a foreign national unlawfully present in the country because the absence of legal status always provides a reason to wish to avoid the attention of DHS. Therefore, the construction threatened to read the limiting language—the requirement that the “purpose or benefit” be “under” the INA or any other federal or state law—out of INA 212(a)(6)(C)(ii) entirely.

 

37.

See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

 

38.

See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

 

39.

This conclusion is consistent with the rationale of Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

 

40.

See Department of State Cable (no. 97-State-174342) (September 17, 1997). However, falsely claiming citizenship on behalf of another foreign national may make the foreign national inadmissible for alien smuggling. See Matter of M-R, 6 I&N Dec. 259, 260 (BIA 1954).

 

41.

See Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled” [7 USCIS-PM B.2(A)(2)].

 

42.

See Reid v. INS, 420 U.S. 619 (1975). See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Mattter of S-, 9 I&N Dec. 599 (BIA 1962).

 

43.

Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors in INA 101(a)(13)(C) is present. See Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998). Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors in INA 101(a)(13)(C) is present, the foreign national is not inspected as an arriving alien. If the foreign national makes a false claim to LPR status at a port-of-entry and if the foreign national is permitted to enter, then the foreign national has not been admitted for purposes of INA 101(a)(13)(A).

 

44.

See INA 212(a)(6)(C)(ii)(I).

 

45.

For more information, see Section D, Knowledge that Claim Was False, Subsection 4, Lack of Capacity [8 USCIS-PM K.2(D)(4)].

 

46.

See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). See 9 FAM 302.9-4(B)(3)(f), Timely Retraction.

 

47.

“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.” See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949).

 

48.

See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).

 

49.

See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).

 

50.

See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).

 

Chapter 3 - Adjudication

A. Evidence

For an officer to find a foreign national inadmissible for falsely claiming U.S. citizenship, [1] See INA 212(a)(6)(C)(ii). the evidence must demonstrate:

The foreign national made the misrepresentation in-person, in writing, or through other means to a person or entity; and

The foreign national made the misrepresentation for any purpose or benefit under the Immigration and Nationality Act (INA), other federal law, or state law. [2] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

There must be sufficient evidence that would lead a reasonable person to find that the foreign national falsely represented him or herself to be a U.S. citizen. [3] The “reasonable person” standard is drawn from INS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency fact-finding must be accepted unless a reasonable fact-finder would necessarily conclude otherwise). Examples of evidence include oral testimony, written testimony, or any other documentation containing information about the applicant’s false claim to U.S. citizenship. [4] The Board of Immigration Appeals (BIA) recently held that Form I-9, Employment Eligibility Verification, is admissible in removal proceedings as support of a charge of inadmissibility. See Matter of Bett, 26 I&N Dec. 437, 441-442 (BIA 2014).

B. Burden of Proof

The burden of proof to establish admissibility during the process of seeking an immigration benefit is on the applicant. [5] See INA 291. See Matter of Bett, 26 I&N Dec. 437 (BIA 2014). The burden never shifts to the government at any time during the adjudication process. [6] See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

1. No Evidence of False Misrepresentation

If there is no evidence that the applicant made a false representation of U.S. citizenship for any purpose or benefit under the INA or any other federal or state law, the officer should find that the applicant has met the burden of proof and is not inadmissible under this ground.

2. Evidence of False Misrepresentation

If there is evidence that would permit a reasonable person to conclude that the applicant is inadmissible under this ground, the officer should find that the applicant has not successfully met the burden of proof. [7] See INS v. Elias-Zacarias, 502 U.S. 478 (1992). An applicant who fails to meet the burden of proof is inadmissible for falsely claiming U.S. citizenship unless the applicant is able to successfully rebut the officer’s inadmissibility finding.

3. Applicant’s Rebuttal Must be Clear and Beyond Doubt

If the officer determines that the applicant is inadmissible based on a false claim to U.S. citizenship, the applicant has the burden of establishing at least one of the following facts clearly and beyond doubt [8] See Matter of Bett, 26 I&N Dec. 437, 440 (BIA 2014). See Kirong v. Mukasey, 529 F.3d 800, 804 (8th Cir. 2008). See Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir. 2008). See Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008). to rebut the finding:

The representation was not false;

The false representation was not a representation of U.S. citizenship;

The false representation was made prior to September 30, 1996;

The false representation was not made for purposes or benefit under the INA or any other federal or state law; [9] For example, a foreign national falsely claiming to be a U.S. citizen during a police arrest would not meet the “purpose or benefit” requirement. See Castro v. Attorney General, 671 F.3d 356 (3rd Cir. 2012). or

The applicant did not know the claim was false, lacks the legal capacity to appreciate the nature of the claim, or qualifies for the statutory exception.

4. Rebutting Inadmissibility Finding

If the officer determines that the applicant has established at least one of the above facts, then the applicant has successfully rebutted the inadmissibility finding and has met the burden of proving that he or she is not inadmissible.

If the officer determines that the applicant has established none of these facts, then the applicant has not successfully rebutted the inadmissibility finding and is inadmissible. [10] See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967). See Matter of M-, 3 I&N Dec. 777 (BIA 1949).

If the officer finds that the evidence for and against a finding of false claim to U.S. citizenship is of equal weight, then the applicant is inadmissible. As long as there is a reasonable evidentiary basis to conclude that an applicant is inadmissible for falsely claiming U.S. citizenship, and the applicant has not overcome that reasonable basis with evidence, then the officer should find the applicant inadmissible.

C. Civil Penalty or Criminal Conviction

Falsely claiming to be a U.S. citizen could result in a civil penalty [11] See INA 274C. Whenever “civil penalty” is used in this section, it refers to a civil penalty under INA 274C.or in a criminal conviction for falsely and willfully representing to be a U.S. citizen. [12] See 18 U.S.C. 911. Whenever such “criminal conviction” is used in this section, it refers to a conviction under 18 U.S.C. 911.

Inadmissibility for falsely claiming to be a U.S. citizen can be sustained simply by proving that the applicant knowingly made the false claim for any purpose or any benefit under the INA or any other federal or state law. For purposes of determining whether the applicant is inadmissible for falsely claiming U.S. citizenship, it is not necessary to establish that the applicant is the subject of a civil penalty or that the applicant has a criminal conviction for falsely and willfully representing to be a U.S. citizen.

If the officer finds that the foreign national has a conviction for falsely and willfully representing to be a U.S. citizen, [13] See Pichardo v. INS, 216 F. 3d 1198 (9th Cir. 2000). the conviction record is sufficient to establish that the applicant is inadmissible for falsely claiming U.S. citizenship.

Similarly, an order of civil penalty based on a false representation of U.S. citizenship is sufficient to establish that the applicant is inadmissible for falsely claiming to be a U.S. citizen. Fraudulent conduct other than a false claim to U.S. citizenship, however, may be the basis for a civil penalty. If the applicant was liable for a civil penalty for document fraud that does not relate to a false claim to U.S. citizenship, [14] For example, the applicant is held liable for a civil penalty based on the use of a fraudulent visa. then the civil penalty order is not an indication that the applicant is inadmissible for falsely claiming U.S. citizenship.

The civil penalty must be specifically based on a finding that the foreign national made a false claim to U.S. citizenship for the civil penalty order to be sufficient to establish inadmissibility for falsely claiming U.S. citizenship.

Footnotes

1.

See INA 212(a)(6)(C)(ii).

 

2.

See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

 

3.

The “reasonable person” standard is drawn from INS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency fact-finding must be accepted unless a reasonable fact-finder would necessarily conclude otherwise).

 

4.

The Board of Immigration Appeals (BIA) recently held that Form I-9, Employment Eligibility Verification, is admissible in removal proceedings as support of a charge of inadmissibility. See Matter of Bett, 26 I&N Dec. 437, 441-442 (BIA 2014).

 

5.

See INA 291. See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

 

6.

See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

 

7.

See INS v. Elias-Zacarias, 502 U.S. 478 (1992).

 

8.

See Matter of Bett, 26 I&N Dec. 437, 440 (BIA 2014). See Kirong v. Mukasey, 529 F.3d 800, 804 (8th Cir. 2008). See Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir. 2008). See Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008).

 

9.

For example, a foreign national falsely claiming to be a U.S. citizen during a police arrest would not meet the “purpose or benefit” requirement. See Castro v. Attorney General, 671 F.3d 356 (3rd Cir. 2012).

 

10.

See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967). See Matter of M-, 3 I&N Dec. 777 (BIA 1949).

 

11.

See INA 274C. Whenever “civil penalty” is used in this section, it refers to a civil penalty under INA 274C.

 

12.

See 18 U.S.C. 911. Whenever such “criminal conviction” is used in this section, it refers to a conviction under 18 U.S.C. 911.

 

13.

See Pichardo v. INS, 216 F. 3d 1198 (9th Cir. 2000).

 

14.

For example, the applicant is held liable for a civil penalty based on the use of a fraudulent visa.

 

Chapter 4 - Exceptions and Waivers

A. Applicability

Inadmissibility on account of false claim to U.S. citizenship does not apply to:

Special immigrant juveniles seeking adjustment of status; [1] See INA 245(h)(2)(A). and

Applicants for registry. [2] Registry is a section of immigration law that enables certain foreign nationals who have been present in the United States since January 1, 1972, the ability to apply for lawful permanent residence even if currently in the United States unlawfully. See INA 249. See 8 CFR 249.

B. Exception [3] See INA 212(a)(6)(C)(ii)(II).

In 2000, Congress added a statutory exception to inadmissibility for false claim to U.S. citizenship. [4] See Section 201(b) of the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395, 114 Stat. 1631, 1633 (October 30, 2000). Congress made the exception apply retroactively.

The exception applies to false claims to U.S. citizenship made on or after September 30, 1996, if the applicant satisfies the following requirements:

Each parent of the applicant (or each adoptive parent in case of an adopted child) is or was a U.S. citizen, whether by birth or naturalization;

The applicant permanently resided in the United States prior to attaining the age of 16; and

The applicant reasonably believed at the time of the representation that he or she was a U.S. citizen.

Each of the applicant’s parents had to be a U.S. citizen at the time of the false claim to U.S. citizenship to meet the first requirement of this exception. [5] See INA 212(a)(6)(C)(ii)(II).

​This exception does not limit the foreign national’s ability to prove on other grounds that he or she did not know the claim was false. Rather, it is one situation in which it would be reasonable to find that the foreign national did not know the claim to U.S. citizenship was false.

C. Waiver [6] For more information, see Volume 9, Waivers [9 USCIS-PM].

The availability of a waiver to an inadmissibility ground depends on the immigration benefit. In general, there is no waiver for inadmissibility based on a false claim to U.S. citizenship [7] See INA 212(a)(6)(C)(ii). for foreign nationals seeking lawful permanent resident status:

As an immediate relative;

Under an immigrant preference category (other than special immigrant juveniles);

As a diversity immigrant;

Under the Cuban Adjustment Act of 1966; [8] See Pub. L. 89-732 (November 2, 1966). or

Under any other statute that does not provide authority to waive the ground.

An officer may grant a waiver to a foreign national seeking adjustment of status as a refugee or an asylee, as a legalization applicant, or under any other basis that specifically permits a waiver of this ground of inadmissibility. [9] See INA 209(c). See INA 245A(d)(2)(B)(i).

​Inadmissibility based on a false claim to U.S. citizenship does not necessarily bar adjustment of status based on residence in the United States since before January 1, 1972.
[10] See INA 249. It could, however, support a finding that the applicant is not a person of good moral character.

Nonimmigrants may seek permission to enter despite the inadmissibility. [11] Under INA 212(d)(3)(A).

Footnotes

1.

See INA 245(h)(2)(A).

 

2.

Registry is a section of immigration law that enables certain foreign nationals who have been present in the United States since January 1, 1972, the ability to apply for lawful permanent residence even if currently in the United States unlawfully. See INA 249. See 8 CFR 249.

 

3.

See INA 212(a)(6)(C)(ii)(II).

 

4.

See Section 201(b) of the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395, 114 Stat. 1631, 1633 (October 30, 2000).

 

5.

See INA 212(a)(6)(C)(ii)(II).

 

6.

For more information, see Volume 9, Waivers [9 USCIS-PM].

 

7.

See INA 212(a)(6)(C)(ii).

 

8.

See Pub. L. 89-732 (November 2, 1966).

 

9.

See INA 209(c). See INA 245A(d)(2)(B)(i).

 

10.

See INA 249.

 

11.

Under INA 212(d)(3)(A).

 

Appendices

Updates

POLICY ALERT – Validity of Report of Medical Examination and Vaccination Record (Form I-693)

October 16, 2018

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in Volume 8, Part B of the USCIS Policy Manual regarding the period of time during which a Form I-693 submitted in support of a related immigration benefits application is considered valid.

Technical Update – Fraud and Willful Misrepresentation and Department of State’s 90-Day Rule

March 28, 2018

This technical update incorporates changes that the Department of State (DOS) made to its Foreign Affairs Manual (FAM) regarding its interpretation of the term “misrepresentation.”

POLICY ALERT – False Claim to U.S. Citizenship Ground of Inadmissibility

December 14, 2016

​U.S. Citizenship and Immigration Services (USCIS) is issuing guidance to address the false claim to U.S. citizenship ground of inadmissibility under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA).

POLICY ALERT – Definition of Certain Classes of Medical Conditions and Other Updates Relating to Health-Related Grounds of Inadmissibility

November 02, 2016

​U.S. Citizenship and Immigration Services (USCIS) is updating guidance regarding health-related grounds of inadmissibility in accordance with the U.S. Department of Health and Human Services (HHS) rulemaking updating Title 42 of the Code of Federal Regulations, part 34 (42 CFR 34).

POLICY ALERT – Validity Period of the Medical Certification on the Report of Medical Examination and Vaccination Record (Form I-693)

May 30, 2014

U.S. Citizenship and Immigration Services (USCIS) is issuing an update to policy guidance in the USCIS Policy Manual addressing the validity period of civil surgeon endorsements on the Report of Medical Examination and Vaccination Record, Form I-693.

Technical Update – Civil Surgeon Applications and Evidentiary Requirements

April 08, 2014

This technical update clarifies that an applicant for civil surgeon designation must, at a minimum, submit a copy of the medical degree to show he or she is a Medical Doctor or Doctor of Osteopathy.

POLICY ALERT – Fraud and Willful Misrepresentation Grounds of Inadmissibility

March 25, 2014

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance on the fraud and willful misrepresentation grounds of inadmissibility under INA 212(a)(6)(C)(i) and the corresponding waiver under INA 212(i).

Technical Update – Vaccination Requirements for Pregnant or Immuno-Compromised Applicants

March 11, 2014

​This technical update replaces the list of vaccines contraindicated for pregnant or immuno-compromised applicants with a reference to the Centers for Disease Control and Prevention (CDC)'s Vaccination Technical Instructions. This ensures the Policy Manual guidance includes the most up-to-date information.

POLICY ALERT – Health-Related Grounds of Inadmissibility and Waivers

January 28, 2014

​U.S. Citizenship and Immigration Services (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).

POLICY ALERT – Civil Surgeon Designation and Centralization of the Designation Process at the National Benefits Center

January 28, 2014

​U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to centralize the civil surgeon designation process at the National Benefits Center, effective March 11, 2014.