INS on Vaccination Requirements
Date: September 29, 1997
To: All Regional Directors
All District Directors (Including Foreign)
All OICs (Including foreign)
All Port Directors
All Service Center Directors
All Training Academics (Glynco and Artesia)
All Regional Counsels
All Asylum Directors
From: Office of Program (HQPGM)
This memorandum supplements the guidelines provided in the Service’s January 17, 1997, wire (96 ACT 008) and April 10, 1997, memorandum (96 ACT #027) concerning the vaccination requirements under section 212(a)(1)(A)(ii) of the Act, as created by section 341 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).
1. Fiancees
The plain statutory language in section 212(a)(1)(A)(ii) of the Act refers to applicants for immigrant visas and for adjustment of status. Applicants for visas under section 101(a)(15)(K) of the Act are not applicants for immigrant visas at this stage of the process. They are classified as nonimmigrants, even though they seek admission to the United States to marry a U.S. citizen, and apply for adjustment of status based on that marriage. They are, however, required to undergo a complete medical examination prior to issuance of the "K" visa to determine whether they would be admissible as an immigrant following marriage to the U.S. citizen petitioner.
In view of these considerations, the Service has reached an agreement with the Department of State (DOS) concerning the vaccination requirements for "K" nonimmigrant visa applicants. DOS and the Service have agreed that the required medical examination for aliens seeking visas under section 101(a)(15)(K) of the Act will include the vaccination assessment described in section 212(a)(1)(A)(ii) of the Act, but that consular officers will not refuse the visa solely because the vaccination requirements have not been satisfied. While the Service has delegated to consular officers the authority to grant immigrant waivers under sections 212(g)(2)(A) and (B) of the Act, such delegation of authority does not extend to the exercise of discretion under section 212(d)(3)(A) of the Act, which is the applicable provision for nonimmigrants seeking a waiver in conjunction with the issuance of a nonimmigrant visa.
When the panel physician’s report indicates that the alien lacks certain required vaccines, consular officers will attach a single-page addendum to Form OF-157 advising the alien of the need to establish compliance with the vaccination requirements when appling for adjustment of status in the United States. Similarly, INS officers at the Ports-of-Entry must not refuse admission to "K" fiancees solely because they have not complied with the vaccination requirements. For "K" fiancees, the adjustment of status application should include the medical exam report performed by the panel physician at the time of the application for the “K” nonimmigrant visa. If the alien lacked any of the required vaccines when the "K" visa was issued, the adjustment of status application must also include the supplement to Form I-693 indicating the results of the vaccination assessment performed by the civil surgeon following admission to the United States.
2. Refugees and Asylees
The Service has determined that the vaccination requirements do not apply to aliens seeking admission to the United States as refugees under section 207 of the Act, because there is no application for "an immigrant visa" or for "adjustment of status" at this stage of the process. Therefore, the medical examination report for refugees need not include a vaccination assessment. Service officers at the Ports-of-Entry should not refuse admission to refugees solely because they have not yet complied with the vaccination requirements. Applicants for asylum are not required to undergo a medical examination, because they are already present in the United States.
When applying for adjustment of status under section 209 of the Act, both refugees and asylees must satisfy the vaccination requirements. For refugees, the adjustment of status application should include the medical examination report issued by the panel physician at the time of application for admission as a refugee, and the supplement to Form I-693 indicating the results of the vaccination assessment performed by the civil surgeon following admission to the United States. For asylees, the adjustment of status application should include the medical examination report issued by the civil surgeon in the United States, accompanied by the vaccination supplement.
3. Registry Applicants under Section 249 of the Act
Aliens applying for the creation of a record of admission for permanent residence under section 249 of the Act are not required to undergo a medical examination, because they are neither applicants for an immigrant visa nor adjustment of status. Thus the health-related grounds of inadmissibility under section 212(a)(1)(A) do not apply.
4. Children of Returning Residents (XA and NA Babies)
The Service is reviewing several issues concerning children born abroad either (1) subsequent to the issuance of an immigrant visa to a parent applying for admission while the visa remains valid; or (2) during the temporary visit abroad of a mother who is a national or lawful permanent resident of the United States. Additional guidance will be forthcoming. In the meantime, Service officers should continue to admit these two groups of children under the procedures in effect prior to the implementation of IIRAIRA.
5. North American Indians
American Indians born in Canada who meet the requirements described in the Service’s regulations at 8 CFR Sections 289.1 and 289.2 may be regarded as having been lawfully admitted for lawful permanent residence. Because such lawful admission is recorded on Form I-181, and neither an immigrant visa nor an adjustment of status application is required, the alien is not required to establish compliance with the vaccination requirements. Therefore, Service officers at the Ports-of-Entry should not consider vaccination requirements in determining admissibility of North American Indians seeking admission to the United States under 8 CFR part 289.
6. Waivers Under Section 212(g)(2)(C) of the Act for Religious or Moral Reasons
Section 212(g)(2)(C) of the Act authorizes the Attorney General to grant a waiver of inadmissibility when the alien establishes that compliance with the vaccination requirements would be contrary to his or her religious beliefs or moral convictions. The plain statutory language refers to the alien’s "religious beliefs or moral convictions" whereas the language in the accompanying Conference Report is more restrictive and refers to "an active member of a religious faith"
The Service has taken particular caution to avoid any infringement on personal beliefs and First Amendment rights to free speech and religion. To this end, the Service has reviewed court decisions on conscientious objection to the military draft, and challenges to State-mandated vaccinations for public school students. The same tests used by the courts in these cases will also be used by the Service in developing the implementing regulations.
To qualify for a waiver under section 212(g)(2)(C) of the Act, the alien must show that: (1) he or she is opposed to vaccinations in any form; (2) the objection is based on religious belief or moral convictions (whether or not as a member of a recognized religion); and (3) the religious belief or moral conviction (whether or not as part of a "mainstream" religion) is sincere. When the waiver application is for a child, the child’s parent must satisfy these three requirements. These three requirements for waivers under section 212(g)(2) of the Act will be incorporated in the proposed regulation to be published in the near future.
7. 212(g)(2) Statistics
Regarding the January 17, 1997 vaccination memorandum (HQ50/5.12), the instructions to report monthly to HQBEN on the number of 212(g)(2) waivers adjudicated under (6)(B) Adjustment of Status (p. 11) have been rescinded. All 212(g)(2) waivers must still be recorded on Form I-181. Additional instructions about maintaining and reporting 212(g)(2) statistical data will be forthcoming.
8. Validity of Medical Reports
In general, medical reports are valid for one year. However, in exceptional cases, where adjustment of status may be delayed beyond one year, the medical report may still be considered valid if there is no Class A or B condition noted thereon. If a Class A condition has been noted, a report on the applicant’s current status, prognosis, etc. is required. If a Class B condition is noted, the applicant must be reexamined by a civil surgeon to ensure that the Class B condition has not developed into a Class A condition. Since in this case the applicant is being reexamined a vaccination assessment will be needed.
If there are any additional questions, contact Sophia Cox, Adjudications Officer, Headquarters Benefits Division, at 202/514-5014.
Paul W. VirtueActing Executive Associate
Commissioner