As predicted in my July 2020 blog post, as of October 1, 2021, the CDC has added the COVID-19 vaccine as a required vaccination for immigration medical exams for all green card applicants, whether applying in the U.S. or abroad at a U.S. consulate. The new vaccine requirement applies to all those who are age-eligible for the vaccine. Outside the U.S, the vaccine requirements will be dependent on the available of the CDC-approved vaccines in the country of processing.
As explained in my previous blog, vaccine waivers are available to those who hold sincere religious or moral objections to all vaccinations. A medical objection to the COVID-19 vaccine and other vaccinations is not sufficient for the approval of a vaccine waiver. It is also important to note that applicants may only apply for a vaccine waiver where they are opposed to ALL vaccinations, not just the COVID-19 vaccine.
Further, in positive news, the U.S. will lift all remaining travel bans for foreign nationals entering the U.S. as of November 8, 2021. In lifting the travel ban, all foreign nationals seeking to enter the U.S. will need to provide proof of full vaccination (two doses, when applicable) to enter the U.S. This restriction only applies to foreign nationals and not U.S. citizens traveling from abroad.
Contact us if you have any questions about the new vaccine requirements for U.S. green cards and travel!
Vaccines and Immigration
***Please note that this article does not take any political or moral stance regarding vaccinations and is merely written for informational purposes so that individuals may understand their obligations and rights as related to vaccination requirements associated with U.S. immigration laws.***
As we stand by to see the impact of a second wave of COVID-19 cases as states continue the reopening process, the race to manufacture and produce an effective vaccine to protect against coronavirus has become more important than ever. Many argue that the world cannot return to “normal” until a coronavirus vaccine is developed and becomes widely available throughout the globe. As the world’s focus turns to a vaccination for COVID-19, apprehension regarding a fast-tracked vaccine [1] has renewed concerns among many who oppose mandatory vaccinations. So what do vaccines have to do with immigration to the United States?
Background on Vaccination Requirements
In 1996, the U.S. Congress added a ground of inadmissibility to the Immigration & Nationality Act, codified at INA §212(a)(1)(A)(iii) which states that every immigrant seeking permanent resident status—through either a U.S. Consulate abroad or through adjustment of status in the United States—must show proof that he or she was vaccinated against vaccine-preventable diseases. Should an immigrant not be able to provide proof of meeting all vaccination requirements, he or she is found inadmissible i.e. ineligible for permanent resident status. This important vaccination requirement has kept Americans safe from the spread of vaccine-preventable diseases which are often more prevalent outside the United States. The vaccination process is part of the routine immigration medical exam (Form I-693) conducted by certified civil surgeons throughout the U.S. or the designated panel physician for the U.S. consulate in each country.
The Immigration & Nationality Act (INA) specifically lists several vaccines which are required by law. The INA requires proof of vaccination for the following diseases: 1) Mumps, measles, rubella (MMR); 2) Tetanus and diphtehria toxoids (Tdap or DTap); 3) Pertussis; 4) Haemophilius influenza type B; and 5) Hepatitis B.
In addition to those vaccines mandated by statute, the law has delegated authority to the Center for Disease Control (CDC) to determine if any additional vaccines should be required for immigration to the United States in the interest of public health. To that end, the CDC presently requires the following additional vaccinations for U.S. immigration: Varicella; Influenza; Pneumococcal pneumonia; Rotavirus; Hepatitis A; and Meningococcal for a total of 10 mandated vaccines.
In determining which vaccinations should be required for immigration purposes, the CDC uses the following criteria: the vaccine must be an age-appropriate vaccine as recommended by the CDC for the general U.S. population and must fall into at least one of the following categories: 1) the vaccine must protect against a disease that has the potential to cause an outbreak; or 2) The vaccine must protect against a disease which has been eliminated in the United States, or is in the process of being eliminated in the United States.
A COVID-19 vaccination would squarely fit into the definition of a vaccine used to “protect against a disease that has potential to cause an outbreak.” It can be assumed from the authority granted to the CDC that the agency will most likely determine that a vaccine for coronavirus be added to U.S. immigration process should one become available.
Blanket Waivers of Vaccination Requirements
For many individuals, vaccinations may not be medically appropriate or logistically feasible for a variety of reasons. Those individuals normally qualify for a blanket waiver which is listed directly on his or her immigration medical examination. Blanket waivers of vaccinations exist for those individuals who fall into one of the four following categories: 1) not medically appropriate: i.e. it is not flu season or individual has experienced a prior adverse reaction to a vaccine or vaccine is not age appropriate; 2) individual is pregnant or immunocompromised and it is not medically appropriate to administer a certain vaccination; 3) CDC has declared a nationwide shortage of a certain vaccine; or 4) the vaccine is not routinely available abroad where medical exam is conducted by consular physician.
Individual Waivers of Vaccination Requirements for Religious Belief or Moral Conviction
Many individuals are very concerned, rightly or not, about perceived negative effects of vaccinations and possess strongly-held beliefs opposing vaccinations in any form. So what legal rights does an individual have who does not qualify for a blanket waiver yet seeks to waive the vaccine requirements with his or her medical exam? Fortunately, U.S. immigration laws provide for individual waivers of the vaccination requirements for individuals who are against vaccines due to their religious beliefs or moral convictions. The availability of this waiver stems from important first-amendment legal protections found in the U.S. Constitution relating to both freedom of religion and freedom of speech. No matter our own individual beliefs on vaccinations, it is important that these legal protections remain in place and that we as attorneys remain committed to upholding these individual rights.
Procedurally, when an individual does not consent to vaccination as part of his or her medical examination or as part of their minor child’s medical examination, the physician completing the medical exam marks the box on Form I-693 that the “individual will request an individual waiver based on religious or moral convictions.” If applying abroad at a U.S. consulate, the applicant then appears at their consular interview where they are determined to be inadmissible due to the failure to comply with vaccination requirements. The individual is then instructed to file a Form I-601 Waiver of Inadmissibility and await the approval of the inadmissibility waiver to obtain final visa issuance. For those individuals adjusting status in the U.S., the individual can choose to concurrently file an I-601 waiver of inadmissibility with his or her case or wait for a request for evidence (RFE) to be issued instructing the applicant to file a Form I-601 waiver with the appropriate fee and evidence.
Pursuant to the U.S. Citizenship and Immigration Service (USCIS) Policy Manual, the agency exercises caution to avoid any perceived infringement on personal beliefs and First Amendment rights to free speech and religion when adjudicating a waiver of the vaccination requirements. To strike a balance between individual rights and the protection of public health, USCIS, in consultation with CDC, has established the following three requirements that an applicant (or the parents of a minor applicant) has to demonstrate through documentary evidence to qualify for approval of his or her waiver:
1) The applicant must be opposed to all vaccinations in any form.
The applicant must demonstrate that he or she opposes vaccinations in all forms; the applicant cannot pick and choose between vaccinations such as not wanting to have an MMR vaccination but being open to tetanus vaccine. If the applicant is seeking a waiver, she must seek to waive all vaccination requirements, not the requirement as it pertains to one specific vaccine. It is important to note that the fact that the applicant has received certain vaccinations in the past but not others does not constitute automatic grounds for the denial of a waiver. Instead, the officer should consider the reasons provided for having received those vaccines, especially if prior vaccinations were administered when the applicant was a minor child.
Further, many applicant's religious beliefs or moral convictions may have changed substantially since the date prior vaccinations were administered, or the applicant is a child who may have already received certain vaccinations under the routine schedules before deciding as an adult to no longer vaccinate. As long as the applicant can show that he or she now opposes all vaccinations, the individual can meet the first prong of the inquiry.
2) The objection must be based on religious beliefs or moral convictions.
This requirement is handled with much sensitivity on behalf of USCIS. The applicant must be able to articulate his or her religious or moral objections to vaccination. For example, many religious denominations such as Jehovah’s Witnesses, Christian Scientists and Scientologists routinely reject forms of modern, Western medicine including vaccinations. Often small subsects of religious groups, such as Ultra-Orthodox Jews, will oppose vaccinations as interfering with the role of God or due to Biblical passages which reference our bodies as temples which have been interpreted as prohibiting practices such as tattoos, piercings and vaccinations. The USCIS officer must balance the applicant's religious/moral beliefs against the benefit to society as a whole.
3) The religious belief or moral conviction must be sincere.
An applicant for the vaccination waiver must demonstrate that he or she holds the belief sincerely as a matter of conscience. As the USCIS Policy Manual states “[e]ven if these beliefs accurately reflect the applicant's ultimate conclusions about vaccinations, they must stem from religious or moral convictions, and must not have been framed in terms of a particular belief so as to gain the legal remedy desired, such as this waiver.” Therefore, applicant should be prepared to show that he or she has held this belief prior to applying for the waiver and that he or she belongs to a community which shares these beliefs, if applicable. The focus on this prong of the waiver adjudication is on whether the applicant’s claimed belief or moral conviction is truly held and whether it is applied consistently in the applicant’s life. This can be supported by prior requests for exemptions to vaccine requirements for school or work purposes.
It is very important to note that the applicant does not need to be a member of a recognized religion or attend a specific house of worship to qualify for a waiver. The plain language of the statute refers to individual religious beliefs or moral convictions, not those only found within the confines of recognized religious or moral establishments.
Officers are trained to distinguish between strong religious beliefs or moral convictions and mere preference or desire not to be vaccinated. Religious beliefs or moral convictions are generally defined by their ability to cause a believer to disregard his or her interests in favor of the espoused religious or moral tenets. An applicant for the inadmissibility waiver has the burden of establishing a strong objection to vaccinations that is based on religious beliefs or moral convictions, as opposed to a mere preference against vaccinations.
Our law office understands that the topic of vaccinations can be a sensitive subject for people on all sides of the issue. We are here to assist individuals in pursuing their legal rights under the immigration law without casting any judgment as to the individual’s moral or religious beliefs regarding vaccines. Contact our office should you be interested in learning more about waivers of the vaccination requirements associated with obtaining your green card.
By: Sasha Westerman-Keuning, Esq.
Board Certified Immigration Attorney
[1]
According to the New York Department of Health, development of a new vaccine normally requires 10-15 years of research. See
https://www.health.ny.gov/prevention/immunization/vaccine_safety/science.htm
The answer is we truly do not know how far-reaching the implications will be, but let's take a look at our current U.S. immigration laws relating to marijuana.
First, it is important to note that our immigration enforcement laws are generally grouped into two categories: 1) deportability/removability: the ability of the government to deport a foreigner already physically present in the U.S.; and 2) inadmissibility: the ability of the government to bar entry of a foreigner into the United States. In the context of marijuana, the laws surrounding inadmissibility--entry into the U.S.-- are significantly harsher than the laws relating to deportability.
In general, drug crimes as applied to the U.S. immigration laws are governed solely by federal law under the federal Controlled Substance Act. As cannabis (marijuana) is classified as a Schedule I substance on the federal controlled substance act, it remains completely illegal under federal law despite any legalization by U.S. states or foreign countries. Unless and until cannabis is removed from the controlled substance act, it will remain a serious issue for foreign citizens, including U.S. green card holders (lawful permanent residents). If like me, you support the removal of cannabis from the Controlled Substance Act, you should encourage your Congressperson to support bills already in Congress which seek to remove marijuana as a federal controlled substance.
The Immigration & Nationality Act (INA) Section 212 delineates classes of Inadmissible Aliens, including drug-based offenses. Section 212(a)(2)(A)(i) mandates that "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of... (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State , the United States , or a foreign country relating to a controlled substance (as defined in section 802 of title 21 ), is inadmissible." In layman's terms, this simply means that a foreigner (including green card holder) can be permanently barred entry i.e. found inadmissible for admitting to acts which constitute a violation of the controlled substance act. No arrest or conviction is required for this inadmissibility law to come into effect. Stating, "I use marijuana to control my glaucoma" could be interpreted by a Customs and Border Patrol (CBP) officer as a sufficient admission to bar entry into the U.S. Arguably, a CBP officer finding a medical marijuana licensing card on a traveler entering the U.S. could be seen as a sufficient admission to bar U.S. entry. Similarly, a business card evidencing that an individual works at or is an investor in a cannabis dispensary or grow house could be seen as sufficient evidence of an admission to a violation of a controlled substance offense.
A second ground of inadmissibility can also come into play to bar U.S. entry for those working in or investing in the legal cannabis industry in a U.S. state or foreign country. INA Section 212(a)(2)(A)(C) relates to Controlled Substance Traffickers stating, "Any alien who the consular officer or the Attorney General knows or has reason to believe —
The broadness of these inadmissibility laws signify that any involvement with legal marijuana as a user, patient, seller, grower, or investor could lead to a permanent ground of inadmissibility. Even though U.S. law has specific requirements for determining when statements rise to the level of an "admission" under our inadmissibility laws, in practice, foreigners at U.S. land borders and airports have little due process rights, no right to an attorney, and find themselves at the discretion and mercy of the individual CBP officer. Inadmissibility laws apply to all foreigners seeking to enter the country including green card holders. This means a green card holder returning from a trip abroad with a medical marijuana card, dispensary business card, etc. could be denied entry and placed into deportation proceedings. These laws are no joke.
A scary, but rarely used, provision of the INA deportability laws is found at INA 237(a)(1)(a) and states any alien is deportable who was (1) Inadmissible at time of entry or of adjustment of status or violates status.- (A) Inadmissible aliens.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable." Should the U.S. government under Attorney General Jeff Sessions seek to find additional ways to bar and deport marijuana users, this provision could open the door to deport anyone who was inadmissible under the above provisions at the time of entry.
Do these laws have any impact on the U.S. citizenship or naturalization process for green card holders? Without a conviction for a marijuana offense (which is unlikely to happen in a state that has legalized cannabis), a green card holder would not fall under any ground of deportability barring approval of his/her naturalization application. However, all applications for naturalization require a showing of "Good Moral Character" for the five years preceding the application. An overzealous USCIS officer could find that an individual lacks good moral character if they have been involved in the marijuana industry. As the naturalization application requires truthful information regarding employment history for the past 5 years, green card holders working or investing in the marijuana industry could be found to lack good moral character by USCIS, barring approval of their N-400 citizenship application.
So what does this all mean? First, green card holders should stay far away from marijuana even if legal in his or her state as it could lead to their inadmissibility or deportation as long as marijuana remains on the federal controlled substance list. International travelers to the U.S. need to understand the risks of being denied entry if they are engaging in activities relating to legal cannabis. They should remove any business cards and medical marijuana cards from their belongings before travel. They should consider deleting electronic evidence from their phones and laptops which can be searched by CBP.
Hopefully we will see positive changes in eliminating marijuana from the federal controlled substance list and these concerns will become a thing of the past. Until that day, foreigners, including green card holders, must exercise extreme caution as it relates to U.S. immigration laws.
If you have a specific question regarding your immigration status, please feel free to contact our office to schedule a consultation.
This long seven-page form paired with a work permit processing time averaging 5-7 months has made one of the simplest immigration processing a difficult one.
Thanks USCIS!
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