Seachange in Line for N-648 Medical Certification for Disability Exceptions Adjudications

by Alan Lee, Esq.

Form N-648 applicants requesting disability exemptions for the English requirement and/or civics requirement and/or oath of allegiance should now see a big change in the general attitude of USCIS officers towards granting exceptions to the requirements. USCIS acknowledged in a form revision and policy update on October 19, 2022, that the changes were guided by public comments and feedback with USCIS Director Ur M. Jaddou saying, “This is a wonderful example of how USCIS is listening to the public it serves in order to better address their needs while fulfilling our responsibilities as an agency.”  The form itself has been shortened and simplified, and new telehealth guidelines further remove barriers for applicants and medical professionals. The form changes were also in response to the Administration’s goal to remove barriers for underserved populations under Executive Order 13985, Advancing Racial and Equity and Support for Underserved Communities through the Federal Government.

Applicants for medical exemptions have experienced an entire host of critical responses from USCIS officers, and under the new policy guidelines, adjudicators are no longer supposed to:

  • Attempt to determine the validity of the medical diagnosis or second-guess why the diagnosis precludes the applicant from complying with the English requirement, civics requirement or both requirements.
  • Request to see an applicant’s medical or prescription records solely to question whether there was a proper basis for the medical professional’s diagnosis unless evidence exists that creates significant discrepancies that those records can help resolve. The officer may ask follow-up questions to resolve any outstanding issues.
  • Require that an applicant undergo specific medical, clinical, or laboratory diagnostic techniques, tests or methods.
  • Conclude that the applicant has failed to meet the burden of proof simply because the applicant did not previously disclose the alleged medical condition in other immigration related medical examinations or documents. It is appropriate, however, to consider this a factor when determining the sufficiency of the N-648. The officer should always examine the evidence of record and ask follow-up questions to resolve any outstanding issues.
  • Refer an applicant to another medical professional solely because the applicant sought care from a professional who shares the same language, culture, ethnicity, or nationality.

Officers should now only do the following when adjudicating the request for exemption:

  • Determine whether the form has been completed, certified, and signed by all appropriate parties.
  • Ensure that the form relates to the applicant and that there are no significant discrepancies between the form and information contained in the applicant’s “A” file or record.
  • Determine whether the form contains enough information to establish that the applicant is eligible for the exception by a preponderance of the evidence including ensuring that the medical professional’s explanation is both sufficiently detailed as well as specific to the applicant and to the applicant’s stated physical or developmental disability or mental impairment.

On telehealth, the new simpler form allows the medical examination to be conducted through telehealth examination with the medical professional adhering to the state telehealth laws and requirements. Medical professionals allowed to fill out and sign the form are medical doctors, doctors of osteopathy, and clinical psychologists.

And where the applicant is so disabled as to not be able to understand or communicate an understanding of the oath of allegiance, a legal guardian, surrogate, or eligible designated representative can complete the naturalization process for the applicant and USCIS can waive the oath of allegiance. USCIS recognizes by priority legal guardian or surrogate, and then in the following order US citizen spouse, US citizen parent, US citizen adult son or daughter, and US citizen adult brother or sister who is the primary custodial caregiver & takes responsibility for the applicant. A person acting on behalf of the applicant must provide proof of legal guardianship or documentation to establish the familial relationship. In addition, the person must provide documentation to establish that he or she has the primary custodial care and responsibility for the applicant (for example, income tax returns, Social Security Administration documents, and affidavits from other relatives). For family members, they must provide proof of US citizenship. If the family member is not a US citizen, USCIS explains why he or she is not qualified to act as a designated representative and offers the applicant an opportunity to bring another person who may qualify.

The new form and guidelines are very encouraging and will hopefully not encounter resistance from naturalization examiners who have been overly skeptical of exemption claims in the past.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2022), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.