Visa applicants can be found inadmissible to the United States due to physical or mental disorders with associated harmful behavior to themselves, others, or property. Alcohol abuse is considered to be one such mental disorder. However, the abuse does not need to rise to the level of addiction or alcoholism. A person is considered to abuse alcohol if its use has begun to interfere with his or her life. According to the Foreign Affairs Manuel (FAM), Title 9, 40.11 N11.2, alcohol abuse by itself is not enough to cause a finding of inadmissibility. An associated harmful behavior must also be present, such as driving while intoxicated.
When conducting the required medical exam, the civil surgeon (for applicants within the U.S.) or panel physician (for applicants at a consulate) must follow the Center for Disease Control’s (CDC) Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders. In these instructions, the doctor is encouraged to base his or her finding of alcohol abuse on medical and psychiatric standards found outside the Technical Instructions and on any of the applicant’s records available, including criminal history and the Q&A portion of the medical exam.
While alcohol-related arrests are not specifically described in the CDC’s Technical Instructions, they are specifically described in the FAM regulations, which indicate that even a nonimmigrant visa applicant should be sent to a panel physician for evaluation if the applicant has:
1. A single alcohol-related arrest or convictions in the past five years (please note: an arrest is enough, a conviction is not required);
2. Two or more alcohol-related arrests in the past 10 years; or
3. Other evidence to suggest an alcohol problem.
These FAM guidelines only indicate when there might be a problem for the panel physician to review. The panel physician makes the determination based on his or her judgment and expertise. Under INA §222(f), neither the attorney nor the applicant has any right to see the panel physician’s report, as it is exempt under the Freedom of Information Act (FOIA) and the Privacy Act.
An immigrant waiver is available for this ground, outlined in INA §212(g)(3) with additional guidelines in 8 CFR §212.7(b)(2). However, granting of the waiver is a matter of pure discretion. In order for the waiver to be granted, the applicant must arrange to report to a mental health facility in the U.S. in advance of entry and must prove how it will be paid for. This waiver is adjudicated by the Center for Disease Control, not USCIS. This process can also be difficult, lengthy and expensive. Oftentimes, it may be better for an applicant to wait until the alleged abuse is in remission.
A nonimmigrant waiver is also available under INA §212(d)(3). In this matter, the applicant would make an informal request to the consular officer, who will then forward the request electronically to the Admissibility Review Office (ARO), a department within Homeland Security. Because the application is submitted electronically, it must be limited to just a few pages. These nonimmigrant waivers often take more than six months to adjudicate.
A visa applicant may also try to contest the finding of the panel physician. An applicant outside of the U.S. may have the consular officer file a request for an advisory opinion with the CDC. However, if the consular officer refuses to file the advisory opinion request, nothing can be done further. It has also been found that the CDC will rarely overturn the decision of a panel physician.
For adjustment of status applicants inside of the United States, the applicant has the right to convene a medical review board under 42 CFR §34.8 to contest the findings of the civil surgeon. There is no guidance in the Code of Federal Regulations regarding how the applicant makes the request or who pays for it. Alcohol-related inadmissibility findings are also rare for adjustment of status applicants in the U.S., compared to visa applicants, likely because 9 FAM 40.11 N11 (described above) does not apply to adjustment of status applicants.
If you are interested in applying for a nonimmigrant or immigrant visa, please schedule a consultation to speak with one of our knowledgeable attorneys today.
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