Are you healthy enough to be a Legal Permanent Resident of the United States?

Marzo 29, 2013 - By Nayef Mubarak

The law defines all sorts of things. It defines mental capacity, intent, contracts, trusts, and even nuisances. Most do not know it, but the law also defines who is healthy and who is not. More precisely, the law defines which categories of noncitizens are unhealthy and thus inadmissible to the United States. Section 212(a)(1)(A)(i) of the Immigration and Nationality Act states “… any alien who is determined to have a communicable disease of public health significance” is ineligible to receive a visa and ineligible to be admitted in to the United States.

What is the legal definition of a disease of public significance? Here is a short list of some of the diseases of public significance: chancroid, gonorrhea, granuloma inguinal, leprosy (infectious), syphilis, and tuberculosis. This list is determined by the Secretary of Health and Human Services (HSS). The list of diseases that are of public significance is not limited to the designations made by the HSS. In addition to the designations of HSS, other quarantinable diseases can be added to the list through Presidential Executive Order, and those diseases that are considered public health emergencies by the World Health Organization (WHO).

Although the above list may have made you cringe, the reality of the situation is many of the diseases are quite common and/or treatable. Whether people admit it or not, it is highly likely that some friends or family members may have or have had the above diseases. How would we cope with being separated from our family member, whether a spouse, child, or parent, because they had gonorrhea? Although the hypothetical seems grotesque and playful, the truth of the matter is it is reality for some individuals. Luckily, waivers are offered for certain family members and certain diseases. Filing a waiver can be quite complicated. It requires additional fees and documentation. Although it may delay the family reunification, complicate cases, and increases costs for the individual, the families could eventually be reunited if the applicant is able to meet the difficult requirements of the waiver.

Needless to say, activists and rights groups have historically challenged this issue. Just recently in 2008, Congress repealed the HIV/AIDS admission bar. Technically, prior to 2008, you were unable to become a legal resident of the United States if you were HIV positive or infected with AIDS. Now if this is really thought about, this was not only an issue for those seeking to enter the United States from abroad, but it was also a hurdle for those individuals already in the United States. For example, if someone entered the United States legally as a student, contracted HIV while in the United States, and eventually married a USC, that individual was technically unable to become a legal permanent resident through their marriage. In order to qualify for waiver one would have to demonstrate three things. First, a qualifying family member is needed such as a spouse, child, or parent. Second, the applicant must establish danger to public health and the possibility of spread of infection posed by the applicant’s condition is minimal. Thirdly, the applicant must demonstrate how they will financially support their medical treatment in the US at no cost to the US government. Given this high standard for a waiver, it is no wonder many of these applications were denied and families were kept apart. Perhaps Congress’s original intent was to protect citizens of our country, but in practice the law was discriminatory and harmful and so it was repealed.

So, are you healthy enough, legally, to become a legal resident of the United States? The answer is probably “yes,” but this is today, after substantial changes in the law and applications for waivers of inadmissibility. The answer may not have been the same just a few years ago.