Waiving Disease

Miguel, my client, worked construction. He had been working on a subway renovation project for months when he successfully adjusted status to legal permanent resident.

Though he had contracted tuberculosis at some point during his most recent job, he was able to obtain a health waiver under the Immigration and Nationality Act, a waiver that would permit him to obtain his greencard even though his disease made him inadmissible -- but for the waiver, he was legally ineligible to immigrate to the U.S.

We are all familiar, whether through films or our grandparents, with scenes of would be immigrants arriving at Ellis Island, only to be turned back because of some disease they possessed. The consensus is that America's health-related grounds of inadmissibility represent a sound, if sometimes heartbreaking, effort to maintain the country's public health. But now almost every major disease that would historically disqualify a person from immigrating to the U.S. is subject to waiver, and because administration after administration refuses to enforce our borders, we absorb 300,000 illegal immigrants whose health is never tested.

A person who is "inadmissible" on health related grounds can never immigrate to the United States because they have a communicable disease of public health significance. Infection with leprosy, tuberculosis, gonorrhea, syphilis and HIV are all grounds for a person to be turned away at the border, and they all prevent an alien from receiving permanent residence. But this doesn't mean that a waiver is unavailable. Whether or not a waiver is given is something within the discretion of the INS (now called the Bureau of Citizenship and Immigration Services), but an alien must generally meet certain threshold requirements: he or she must be the spouse or child of a citizen or lawful permanent resident, must demonstrate that he or she will have no impact on public benefits (Medicaid, for instance) and the illness must not present a danger to public health. If you ask how it is that tuberculosis cannot be a danger to public health, you're not alone.

In 2002, Northern Virginia saw a one year jump of 17 percent in tuberculosis cases, with Prince William County reporting a 188 percent increase over the prior year. State health officials have attributed the outbreak to immigrants, and noted that new immigrants in particular have introduced drug-resistant strains of the disease to the area. The preceding year, the Indiana University School of Medicine investigated an outbreak of multi-drug resistant TB in Marion County and found its cause to be the county's influx of Mexican nationals. At the same time, the Tuberculosis Control Program of the New York City Department of Health and Mental Hygiene found that 64 percent of new tuberculosis cases occurred among immigrants, primarily those from Bangladesh, Ecuador, India, Pakistan, Mexico, and China. The Department of Health found that, in Queens, 81 percent of new tuberculosis cases in 2001 were those of immigrants.

And if you have tuberculosis, or HIV, or syphilis, and you're not the spouse or child of a citizen or lawful permanent resident, there's a doctor in Queens who, for a fee, will provide you with a clean bill of health.

Far more troubling, and with far greater public health implications, is the fact that 300,000 people cross our border every year that are never seen by immigration authorities. They have settled here, and most reliable estimates put our country's illegal immigrant population at 8 million to 11 million. In their desire to remain undetected by immigration authorities, most of these people will not ask for directions on the street, let alone participate in public health efforts to quell an outbreak.

Enter SARS. It may be the case that we have not, in our lifetime, seen a disease outbreak quite like it. What began less than two months ago as a sneeze near an elevator in Hong Kong has spread to at least 14 countries and infected almost two thousand people. It is drug resistant. It started in Guangdong province in China, and since immigration to America started, Guangdong has sent more of its émigrés here than any other Chinese province. Visit any Chinatown in the U.S. -- from Boston to Chicago to San Fransisco to New York -- and you will find that a majority of its residents have roots in Guangdong. Families from Guangdong regularly visit their relatives in America.

Academics estimate that there are 1 million illegal Chinese nationals in the U.S. Because many were smuggled into the country, and their removal to China would mean that they will without doubt be unable to payback the cost of their passage and will therefore likely be killed, there is wall between illegal Chinese immigrants and wider American society like there is with no other population.

San Fransisco's Chinatown reported its fourth case of SARS last week.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters.  He teaches at Berkeley College, and is author of The New Immigration Law and Practice, a textbook to be published by West Legal Publications in October, 2003.

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