Waivers of Health-Based Inadmissibility for U.S. Green Card Applicants

A finding that a foreign national might be inadmissible to the U.S. on health grounds is not necessarily the end of their application for an immigrant visa or green card. It might be possible to ask U.S. immigration authorities to overlook the ground of inadmissibility, by filing a "waiver" application.

This article will focus on the most commonly requested types of waivers, which require the use of USCIS Form I-601.

(Form I-602 is used only for refugees and asylee waivers, and will not be covered in this article. In general, asylees and refugees must prove that a waiver is justified based on humanitarian grounds, for family unity purposes, or in the public interest.)

For details on the health grounds of inadmissibility, see How Health Issues Can Make You Inadmissible to the U.S.

When Is a Waiver of a Health Issue Available?

Waivers are available for communicable diseases and physical or mental disorders that would otherwise make a person inadmissible, and for refusal to receive vaccinations on religious or moral grounds. However, there is no waiver available for a drug abuser or addict.

Also be aware that all waivers are discretionary, meaning that the U.S. immigration official reviewing the case is authorized by law to use professional judgment and training to determine the outcome. Based on this discretion, the official can deny an application even if the person seems to qualify for a waiver.

Each separate type of waiver of health-based inadmissibility has different requirements for approval.

Applying for a Waiver of a Communicable Disease

The official forms for requesting waivers for permanent residency applicants are Forms I-601 and I-602, available for free on the forms page of the website of U.S. Citizenship and Immigration Services (USCIS). It doesn't matter whether you are applying for your green card while living in the U.S., through the process known as adjustment of status, or from overseas, through a U.S. consulate; the same form is used in either case.

In order to apply for a waiver of a communicable disease of public health significance, you will need a "qualifying family member": specifically a U.S. citizen or legal permanent resident spouse, parent, unmarried child, or adopted minor child. You may also apply if you are the fiancé or fiancé's child of a U.S. citizen or are a VAWA self-petitioner. You must show, by submitting documentation and declarations with your waiver application, that the "qualifying relative" will suffer extreme hardship if you are not permitted to enter or stay in the United States. Extreme hardship can be found based on a wide range of factors, including emotional, mental, and physical pain and suffering, and financial turmoil.

As an intending immigrant, your own personal pain and suffering is not a recognized factor in demonstrating extreme hardship.

In addition to explaining how your qualifying family members will suffer if you are forced to leave the U.S., you should also explain how your family members will suffer if they must join you in living abroad. Issues your family might face abroad can include language and cultural barriers, lack of employment, education opportunities, and required healthcare, and concerns for safety.

Extreme hardship is defined by many factors: there is no single "magic bullet." Because of the difficulty and individual nature of establishing extreme hardship to a qualifying family member, and the fact that the immigration official can deny a waiver as a matter of discretion, extreme hardship waivers are considered to be a complex sub-field of immigration law. You should consult with an experienced immigration attorney or accredited representative if you believe that a waiver may be required in your case, and for assistance in preparing your waiver request.

In addition to extreme hardship, if the waiver is requested for someone with tuberculosis, you must also provide information on where the disease will be treated in the U.S., as well as the endorsement of a local or state health official with jurisdiction over the treatment facility.

Applying for a Waiver of the Vaccination Requirement

If you object, on the basis or religious or moral reasons, to receiving any and all vaccinations, you may apply for a waiver of the vaccination requirements. (You cannot pick and choose, objecting to only one or a few vaccinations.)

Your immigration medical examination will include a review of your vaccination record. For any of the possible required vaccinations, the physician would ordinarily either give you a vaccination or decide that the vaccination is not medically appropriate. If the doctor decides that a particular vaccination should not be administered to you for health reasons, that's enough by itself; you won't need a waiver.

Inform your examining physician if you are requesting a waiver based on your religious or moral beliefs. If you don't, the doctor might try and give you whichever vaccinations deemed medically appropriate. (Note that the doctor does not make the final decision on the waiver; and if the immigration authorities deny your request, they may require you to either get those vaccinations done later, or give up your application for a green card.)

To apply for the vaccinations waiver, you will need to submit Form I-601 along with your green card application, and include evidence that you are against vaccinations in any form, that your objection is based on religious beliefs or moral convictions, and that your religious or moral beliefs are sincere.

Evidence may include letters of support from religious leaders of your faith and others in the community who share your beliefs, and references to religious scripts and doctrines, articles, and academic studies describing your religious or moral convictions.

Applying for a Waiver of a Mental or Physical Disorder

Anyone found inadmissible because of a mental or physical condition that might cause harm to the property, safety, or welfare of that person or others can apply for a waiver. You must prove that you are not at risk of causing any harmful behavior. This is best done by submitting a doctor's report on your physical or mental condition and the harmful behavior associated with it, which should cover:

• your current physical and mental condition, including your prognosis, life expectancy, and chances of future harmful behavior because of your condition
• a history of your condition and any harmful behavior it has caused, including any episodes of hospitalization, and
• your physician-recommended course of treatment, noting facilities near where you will be living or where you live in the U.S. that can provide treatment to reduce the likelihood of you engaging in harmful behavior.

No qualifying relatives are needed for this waiver.

Approval of Certain Waivers Might Be Subject to Conditions and a Monetary Bond

As a condition of granting your waiver of inadmissibility for a communicable disease or a mental or physical disorder, you could be required to agree to certain conditions in order to limit the spread of your disease, and to post a monetary bond. The officer approving your application may place conditions on you, such as that you undergo medical treatment or therapy, or are restricted in your traveling.

It is important that you comply with all conditions imposed on you, even after your green card is approved and you are living in the United States. Violating your conditions can lead to deportation and/or forfeiture of your bond money.

Getting Legal Help

An experienced immigration attorney can be hugely helpful in preparing immigration forms, gathering supporting documents from independent sources, linking you up with medical professionals, evaluating the strength of your waiver claim, drafting affidavits, preparing witnesses, and accompanying you to in-person interviews.