Medical-Related Barriers for Immigrants
The United States is a high-receiving country for immigrants and refugees. Excluding non-immigrants and undocumented foreign nationals, the Department of Homeland Security reported that over 1.2 million persons obtained permanent resident status in 2006. Because of the sheer size of immigrants coming into the US each year, immigration policies are debated, often heatedly, from policymakers in the halls of Congress to the average layperson in the streets of New York City. Immigration policies that do not fuel much debate may not be the foremost concern for those seeking residency. Nevertheless, they are important because they can prevent potential immigrants from entering or remaining in the United States. One such policy concerns the barring individuals afflicted with certain diseases. Immigration and Naturalization Act s. 212 generally disallows, for medical reasons, two categories of persons from entering or seeking permanent residency in the United States.
First, it disallows those who have communicable diseases. With the exception for certain adopted children, the INA requires that anyone seeking entry into the United States as an immigrant or as a permanent resident must be immunized against all “vaccine-preventable diseases” including mumps, measles, rubella, polio, tetanus, diphtheria toxoids, pertussis, influenza B, and hepatitis B.
Second, it disallows individuals who have current or past mental or physical disorders that pose safety threats to other persons or property. However, intellectually disabled individuals are no longer deemed ineligible to enter or to remain in the US unless they pose safety threats to other persons or to property.
To prevent those with certain illnesses outlined in the INA from entering or remaining on American soil, INA sections 212, 221, and 245 require that potential immigrants and refugees, and persons seeking to reside in the US permanently undergo a medical examination. The examining physician must be a doctor appointed by the Department of State or a civil surgeon. The Secretary of Health and Human Services has enacted specific regulations to provide guidance to the examining physician as to whether a person seeking to enter or to permanently remain in the US has satisfied medical requirements. For instance, the Code of Federal Regulations have incorporated eight communicable diseases that the Centers for Disease Control and Prevention have deemed to have public health significance: class A tuberculosis, HIV infection, syphilis, chancroid, gonorrhea, granuloma inguinale (GI), lymphogranuloma venereum (LGV), and leprosy. Persons afflicted with one of the eight diseases will likely be denied entry into the US.
Although a person may be denied entry into the US on medical grounds, all is not lost. There are waiver procedures for those who qualify. First, INA section 212(g)(1)(A) and (B) allows the Attorney General, at his or her discretion, to grant a waiver to a parent, spouse, and an unmarried adopted or birth child of an American citizen, a permanent legal resident, or an immigrant carrying a US-issued VISA. Second, INA section 212(g)(1)(C) and title 24 of the Code of Federal Regulation section 41.3 allow the Attorney General to grant waivers to battered immigrants. Therefore, even if an immigrant seeking admission into the US is afflicted with a serious communicable disease such as an HIV infection, INA s. 212(g) allows the Attorney General to grant the potential immigrant a waiver if he or she qualifies. Perhaps the Special Agricultural Worker programs, codified under section 1160 of the United States Code state it best when it provides that waivers may be provided “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”
Provided that the United States still remains an economic superpower, as the economy continues to globalize, it is likely that immigration rate will continue to increase. As long as geographic bordering remains, a country will naturally want to protect those residing within its borders from those coming from outside of its borders. Setting specific medical requirements for those coming from outside of American borders is one way that the United States can protect its citizens. Unless they qualify for a waiver, immigrants who are afflicted with communicable diseases, or who are afflicted with mental or physical disorders posing safety threats to others or to property, will most likely be unsuccessful in applying for immigration or permanent residency status with the US.