Mental Illness a Barrier to U.S. Immigration?

For would-be U.S. 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 to people who, among other things, have certain kinds of physical or mental illness. The issue is particularly acute in situations where the chances of harm to persons or property appear high or when an immigrant might have no solid 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 have taken steps toward handling such cases in a more fair and compassionate manner. However, particularly if you are the U.S. citizen or lawful permanent resident who is 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 deal with them.

The Immigration Inadmissibility Bar for Mental Disorders

U.S. immigration law specifically bars U.S. entry or a green card to foreign nationals who have a combination of these two issues:

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 general public.

U.S. law also tries to prevent entry by people who have had in the past a 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?" U.S. immigration 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 on this matter 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 category, a family-based category, or through any of various other means, they will have to undergo a medical examination through a pre-approved physician. (See What to Expect at the Green Card Medical Exam.) 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 United States, 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.

And even if the immigrant doesn't come forward and mention a mental illness to the physician, the matter might come to light during the exam. The physician will, for example, look closely at what medications the person is on. They might ask about scars or evidence of self harm. They will assess the applicant's general orientation, mood and affect, speech and language, thought process and content, and behavior. (These standards come from the CDC's Mental Health Technical Instructions for Panel Physicians.)

If a dangerous mental illness seems like a possibility, the physician can review other relevant records, such as police, military, school, employment, and historical medical records. They can also inquire of family members regarding the applicant's social functioning, including any issues at their school or job, or about run-ins with law enforcement.

Overcoming a Mental-Illness-Based Inadmissibility Bar

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

1. The applicant can potentially 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 applicant receives that reduces or mitigates the effects of the condition. The intending immigrant can also secure prognoses from medical and psychological care professionals attesting to the fact that the disorder is not associated with dangerous behavior, or that such behavior can be controlled and maintained.
2. If the intending immigrant cannot provide the kinds of documentation noted above, or if the immigrant has exhibited dangerous or threatening behavior in the past, they can still 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 United States 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 itself, why any harmful behavior will not reoccur, and what treatment plans the immigrant will follow in order to ensure that harmful behavior will not reoccur.

The Inadmissibility Bar for Public Charges (Who Need Government Assistance)

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 United States 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 United States, 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 two steps to take.

1. 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.
2. You can provide affidavits to immigration officials promising 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 (or will reimburse any government agencies from which they receive such 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.

When to Hire an Immigration Attorney

As you can see, cases for immigrants with mental disabilities or disorders can be highly complex. Nevertheless, 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. Contact an immigration attorney who can help you negotiate these bars to admissibility and suggest strategies to protect everyone's best interests. (See, for example, Is an Immigration Lawyer Worth the Cost?.) Also consult with a medical or mental health professional who is well-versed in the immigrant’s particular condition.