A necessary component of obtaining an immigrant visa at the U.S. Embassy abroad is a medical clearance. The clearance is obtained after successfully undergoing a medical examination by an approved panel physician and receiving vaccinations, if required. In recent years, panel physicians at the St. Luke’s Hospital in Manila have been asking questions of visa applicants during the medical evaluation process, and then using the answers to cause a bar on admission to the U.S. for the individual being evaluated. Specifically, answers relating to past drug use have been gained by the physicians in confidence, then relayed to Embassy officers, causing a bar to admissibility to unsuspecting visa applicants.

Currently, U.S. Embassy Manila Officers take the position that an individual who has been petitioned for an immigrant visa, and is undergoing the final Embassy processing steps, can be banned for life for admitting that he or she had used drugs in the past. The ban applies even if the drug use was one isolated incident or occurred many years ago. The lifetime ban is also applicable even if the applicant was never charged or convicted of any drug crime and if a drug test turned out negative. Thus, some visa applicants that have been waiting years for their priority date to become current and have been eagerly fulfilling all necessary visa processing steps, may be in for an unwelcome surprise when undergoing what should be a routine medical evaluation.

However, two recent decisions of the Administrative Appeals Office (AAO) have found that such practice on the part of the St. Luke’s physicians is unlawful. These decisions build on a strong body of Board of Immigration Appeals (BIA) cases which illustrate the requirements for when someone who has not been convicted of drug use can be banned from the U.S. for merely admitting past drug use or experimentation. The cases of Matter of K, Matter of J and Matter of P indicate that in order for a visa applicant’s admission of past drug use to be used against him, the admission must have been validly obtained. Validly obtained means that the applicant must have been provided with the definition and essential elements of the crime prior to his admission; the applicant must admit the conduct constituting the essential elements of the crime and that he committed the offense; and the applicant's admission must be voluntary.

In the recent AAO cases, both of the applicants had been petitioned by immediate family members, and underwent normal visa processing. Neither applicant had been convicted of any drug crime, and both honestly admitted to past drug use during medical examinations at St. Luke’s Hospital. Nonetheless, Manila’s U.S. Immigrant Visa Section attempted to ban the applicants from entering the U.S. due to the admissions. Waivers in relation to the drug use were filed, but rejected by the U.S. Embassy. Nonetheless, the Embassy certified the issue to the AAO, asking for the appellate body’s own opinion in the matter. In turn, the AAO agreed with BIA precedent by finding that the alleged admissions of drug use obtained in these cases were invalid as the applicants had not been provided with an adequate definition of the crimes, including all essential elements, in plain English. The AAO noted that following these procedures in obtaining drug admissions serves the interests of fairness and would ensure that no trickery or entrapment was in effect. As such, in a striking victory for the visa applicants, it was ruled the admissions obtained by the St. Luke’s physicians could not be used against them in their visa processing.

The requirements of notice and explanation of essential elements have been incorporated into Volume 9 of the Foreign Affairs Manual (FAM) of the Department of State. The FAM is used by consular officers abroad in determining what individuals should be barred from entering the U.S. Due Process in this area is evolving and ever-changing, but the recent momentum is cause for optimism. Reeves & Associates will continue to challenge the Manila Embassy’s use of the medical exam to extract “admissions” from unwitting visa applicants. The purpose of the medical exam as defined by the Centers for Disease Control is to identify medical conditions, including current use or addiction to drugs, not to identify youthful experimentation for the purpose of developing evidence to bar visa applicants for life.

All current and future immigrant visa applicants undergoing overseas processing would benefit greatly from the assistance of a qualified immigration attorney. The facts of each case need to be carefully examined so as to determine the proper course of action to ensure successful issuance of the Immigrant Visa.