Mental Illness a Barrier to U.S. Immigration?

For immigrants with a mental disorder or disability, seeking entry to the United States is not easy. U.S. immigration law's "inadmissibility" provisions impose barriers to entry for persons with certain kinds of physical or mental illness, particularly when it appears that the chances of harm to persons or property are high or when an immigrant might have no source of financial support in the United States.

These barriers can be compounded by immigration officials who lack up-to-date scientific knowledge or who unknowingly prejudice such cases.

As medical science improves, U.S. immigration officials are slowly but surely handling such cases in a more fair and compassionate manner. However, if you are sponsoring an immigrant who has a mental disorder or disability, you should be aware that they will face significant hurdles. Let's take a look at these possible barriers and how to work with them.

The Immigration Inadmissibility Bar for Mental Disorders

U.S. immigration law specifically bars U.S. entry or a green card to non-citizens who have a combination of two things:

1. a physical or mental disorder that can be clinically diagnosed and;
2. behavior associated with the disorder that could pose or has posed a threat to the property, safety, or welfare of the immigrant or to others in the public.

The law also looks out for immigrants who have had in the past a similarly harmful physical or mental disorder that could recur or lead to other behavior that is harmful to the immigrant or others.

What Types of Disorders Give Rise to Inadmissibility

What is a "physical or mental disorder?" The law leaves this somewhat vague, simply saying that U.S. immigration officials must consult with the U.S. Department of Health and Human Services. However, U.S. immigration officials do consider the World Health Organization's Classification of Diseases as an authoritative source.

What's most important to note about the law is that the mental/physical disorder bar is two-part; it applies only when the immigrant has both 1) a disorder and 2) some kind of behavior stemming from that disorder that poses a threat to persons or property.

How Will U.S. Immigration Officials Discover an Applicant's Disorder?

Whether an immigrant is applying for a U.S. green card under an employment-based visa, a family-based petition, or through most other means, they will have to undergo a medical examination through a pre-approved medical physician.

Applicants for temporary visas, however, do not automatically have to undergo such an exam, though they can be asked to do so.

The physician is usually designated by the U.S. consular post for an immigrant's home country or, if the immigrant is adjusting status in the U.S., by U.S. Citizenship and Immigration Services (USCIS). The immigrant will have to submit the results of this exam to U.S. immigration officials as a part of the immigrant visa or green card application. As a consequence, immigrants have to disclose whether they have had a mental or physical disorder.

Overcoming the Inadmissibility Bar

If it becomes clear that the intending immigrant is likely to be found inadmissible based on a mental or physical disorder, the person has two possible routes of dealing with this.

First, they can show U.S. immigration officials that, despite having a particular disorder or disability, the condition is not associated with any kind of threatening or harmful behavior. Usually this involves providing as much documentation as possible about any medical or psychological treatment that the immigrant receives that mitigates the effects of the condition. The intending immigrant can also secure prognoses from medical and psychological care professionals attesting that the disorder is not associated with dangerous behavior, or that such behavior can be controlled and maintained.

Second, if the immigrant cannot provide the kinds of documentation noted above, or if the immigrant has exhibited dangerous or threatening behavior in the past, it is possible to seek a waiver of the physical or mental disorder bar. Waivers are a form of "forgiveness" that can be granted by U.S. immigration authorities to allow immigrants to enter the U.S. despite something that would normally bar their entry.

In the case of mental illness, immigrants can ask for a waiver from the Department of Homeland Security, but will need to provide a detailed medical report discussing the condition, why any harmful behavior will not reoccur, and what treatment plans the immigrant will follow in order to ensure that any harmful behavior will not reoccur.

As you can see, cases for immigrants with mental disabilities or disorders can be highly complex. Seek assistance from a licensed immigration attorney. You should also consult with a medical or mental health professional well-versed in the immigrant's particular condition.

The Inadmissibility Bar for Public Charges

U.S. immigration officials are not only on the lookout for immigrants who might manifest dangerous behavior. Under the immigration laws, an immigrant who is likely to become a public charge (rely on need-based government assistance) in the U.S. is barred from admission. In other words, the immigration laws do not grant entry to people who will likely have no financial support and will have to rely on programs like welfare, food stamps, Medicare and Medicaid, and so on.

The public charge bar can have significant ramifications for immigrants with mental disabilities or disorders. Immigration officials are concerned that these immigrants might find themselves stranded in the U.S., unable to find work because of their disability and unable to receive or afford appropriate care and treatment. Also, unlike with the mental health bar, immigration officials can look at a much wider, and less scientific, combination of factors in considering whether the person might become a public charge. These factors can include age, family status, assets and finances, education and skills, and, of course, health.

If you are a U.S. family member or other person sponsoring or helping a possibly disabled immigrant work with this bar, here are some steps to take.

First, you and the immigrant can compile their medical history and any relevant treatment regimes to show that the mental disorder or disability is manageable or does not prevent the immigrant from being productive and earning a living. The evidence to demonstrate this can be relatively broad, but includes prognoses from medical or psychological professionals regarding the immigrant's health, any treatment plans that effectively mitigate the effects of a disability or otherwise enable a productive life, documentation of a successful career or job history, resumes or curriculum vitae showing professional credentials, and other similar forms of evidence. In particular, proof of continuous earnings or salary can be critical.

Second, you can provide affidavits to immigration officials that you, as an immigrant sponsor, will support the immigrant financially. This typically occurs through the family-based immigration process and is done through Form I-864, Affidavit of Support. By filling out this affidavit, you are attesting to U.S. immigration authorities that you will, if need be, supply the living expenses of your sponsored immigrant, such that they will not need to rely on public assistance. Be warned, however, that Form I-864 is also a contract between you, the sponsored immigrant, and the U.S. government, making you liable if for some reason the immigrant needs public assistance. You should work with a licensed immigration attorney who can help guide you through these complex issues.

Persons with mental disabilities or disorders can immigrate to the United States and can seek new lives here. You and your sponsored immigrant should be aware of the numerous potential pitfalls, however. Contact an immigration attorney who can help you negotiate these bars to admissibility and the complex issues involved.