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Immigration Law

Cyrus Mehta: Vaccine Inequality and Green Cards

Cyrus Mehta, Aug. 30, 2021

If the US Does Not Eradicate Vaccine Inequality, the Requirement of COVID Vaccinations for Many Green Card Applicants Will Result in a De Facto Ban

"Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a “Class A inadmissible condition,” the Centers for Disease Control and Prevention (CDC) announced. The CDC explained that the COVID-19 vaccination meets the criteria for required vaccinations and is a requirement for applicants eligible for the vaccine regardless of evidence of immunity, a negative COVID-19 test, or prior COVID-19 infection. The new vaccine requirements apply to a foreign national filing an I-485 application for adjustment of status and completing the I-693 medical examination with a designated USCIS civil surgeon or to a foreign national applying for an immigrant visa or refugee status at a US consulate and undergoing a medical examination with a panel physician.

With respect to I-485 adjustment applicants, the CDC  has stated that the applicant “must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before completion of the medical examination.” The COVID-19 vaccination requirement differs from previous requirements in that “the entire vaccine series (1 or 2 doses depending on formulation) must be completed in addition to the other routinely required vaccines. COVID-19 vaccinations can now be given at any time, without regard to the timing of other vaccinations.” Acceptable vaccines include Pfizer-BioNTech, Moderna, and Janssen (Johnson & Johnson).

Panel physicians in countries outside the US may accept vaccines authorized for emergency use or approved by the US Food and Drug Administration  or vaccines listed for emergency use by the World Health Organization. In addition to the three vaccines used in the US, the WHO lists many other vaccines used outside the US such as AstraZeneca, Covishield and Covaxin, Sputnik, Sinopharm and Sinovac, among others. Given that the US vaccines are not widely available in many countries, it is good news that other vaccines will be recognized when intending immigrants overseas must be vaccinated against Covid-19.

Waivers are available for  under both circumstances if the vaccine is not age appropriate, the vaccine is medically contraindicated, or the applicant does not have access to one of the approved vaccines in their home country. Applicants may also apply for an individual waiver on religious or moral grounds.

According to reports, the Biden administration also is developing plans for a COVID-19 vaccine mandate for almost all foreign visitors to the United States, with some exceptions. Note though that proof of the vaccination does not exempt international travelers from the preexisting requirement of presenting proof of a negative Covid-19 test within three days of boarding an international flight to the US.

As there is a great disparity in vaccination programs across the world, the mandating of vaccines for green card applicants and visitors may hinder the ability of people to easily come to the US. According to the NY Times vaccine tracker, https://www.nytimes.com/interactive/2021/world/covid-vaccinations-tracker.html, the UAE has the highest percentage of  fully vaccinated people within its population (76%), while the percentage of fully vaccinated people in countries such as India (10%),  Senegal (3.5%) and Haiti (<0.1%) is abysmally low.

Until now, even if a country was subject to a Covid ban, one applying for an immigrant visa is exempted from the ban.  The lack of vaccine access in a country will surely hinder the immigrant visa process and impose a de facto ban. Those who have won the DV lottery must be processed for the immigrant visa by September 30 each year, and a delay in getting fully vaccinated by the deadline will result in the loss of an immigrant visa under this category. This is not to suggest we should object to the mandatory vaccination of intending immigrants before arriving in the US because of the lack of vaccine availability in many countries, especially in low and lower-middle income countries,  that send many immigrants to the US.  Indeed,  the US needs to ensure in concert with the WHO that there is no vaccine inequality and people from all over the world must have quick and easy access to vaccines. It is a sad state of affairs that vaccine hesitant people in the US refuse to get vaccinated when there is so much  vaccine availability while it is difficult to get a vaccine in other countries.

Finally, we have consistently maintained that the Covid proclamations imposing travel restrictions are ineffective in curbing the spread of the coronavirus as they are riddled with exceptions. US citizens, permanent residents and noncitizens with US citizen or permanent resident children are exempted from the ban. So are those who can obtain national interest exception waivers on a variety of grounds. On the other hand, those subject to the ban have to suffer immeasurable hardships by remaining separated from employers and family members who are in the US. It will make more sense if the US insists that everyone entering the country be fully vaccinated rather than subject countries to Covid Proclamations. However, to make this a worthy goal, the US as a global leader must ensure vaccine equality to everyone in the world. Ensuring equality would be in the interest of the US and the whole world as it would create the best chance to eradicate the coronavirus pandemic once and for all."