Guidance on "Disability" for Naturalization
Prior to May 1998

In a recent memorandum dated March 12, 1997, the INS provided policy guidance on Section 312 of the Immigration and Nationality Act detailing the exceptions available for persons with disabilities in connection with possibly obtaining citizenship.

This exception affords naturalization applicants with physical or developmental disabilities or mental impairments an exception to English language proficiency and United States history and government (civics) knowledge requirements. This amendment augments the preexisting exception that persons with disabilities were afforded regarding only the English proficiency requirements of section 312.

The new form N-648: Medical Certification for Disability Exceptions, with supplemental instructions is to be used for all such disability requests. Cases where the applicant meets the requirements for the disability exception but cannot meet the requirements of the oath of allegiance will not to be denied at this time. The INS will separate these cases and hold them until further guidance is provided to all INS field offices.

There have been changes to the previous law whereby blindness and deafness have been removed as disabilities.

The INS is concerned with the possible fraud and abuse that may ensue with this exception. Applicants who are granted Section 312 exceptions are required to meet all other applicable eligibility requirements for naturalization.

The INS has been advised to accord the same level of discretion and sensitivity in all section 312 disability exception cases as in orphan adoption cases.

In the place of using the regular INS approved civil surgeons used in adjustment petitions, the INS will allow medical doctors or clinical psychologists licensed to practice in the United States to complete the N-648.

The exceptions for persons with disabilities are not blanket exemptions from the requirements mandated by section 312.

Blind or deaf applicants desiring either a complete exception to the section 312 requirements, or only an exception to the English or civics portion of the requirement, must file an N-648 in the same manner as any other applicant with a disability.

INS officers have been advised to use compassion and sensitivity in making adjudications involving persons with disabilities.

Disability Definitions

The definition of disability comports with the definitions used by the Social Security Administration in their regulations. The statute refers to a medically determinable physical or mental impairment(s), that already has lasted or is expected to last as least 12 months.

The phrase medically determinable physical or mental impairments encompasses the three disability categories noted in section 312 of the Act and refers to an impairment that has resulted from anatomical, physiological or psychological abnormalities. Using medically acceptable clinical and laboratory diagnostic techniques, these abnormalities can be shown to so limit or impair the individual as to render him or her unable to learn and demonstrate the information required by section 312. In addition, language is included in the regulation that prevents individuals whose disability resulted from the illegal use of drugs from being granted these exceptions.

Medical Professionals Authorized to Complete New Form N-648

The Centers for Disease Control (CDC)contributed to the decision not to rely on the INS approved civil surgeons to perform this function. The CDC noted that the majority of civil surgeons have expertise centered around diagnosing communicable diseases, not in making complex disability determinations.

Only medical doctors licensed to practice medicine in the United States or clinical psychologists licensed to practice psychology in the United States (including the United States territories of Guam, Puerto Rico, and the Virgin Islands) will be authorized to make a disability determination, utilizing the new form N-648. In addition, a civil surgeon will be able to make a disability determination, but based on the surgeons expertise with diagnosing or treating particular disabilities, not on the fact that he or she is a civil surgeon. These licensed medical professionals will be required to certify on the new form that their medical specialty, experience, and other qualifications permit them to make such a complex disability assessment. In addition, the medical doctor or licensed clinical psychologist must certify under penalty of perjury that his or her statements are true and correct.

Medical professionals not authorized to complete the N-648 include nurse practitioners, homeopathic practitioners, doctors of osteopathy, physician assistants, and medical center or nursing center administrators who are not licensed medical doctors with disability experience. As is the case with all INS adjudications, the burden is on the applicant and the licensed medical professional to ensure that the N-648 is completed correctly and that the medical professional is authorized to make the certification.

Beyond reviewing the N-648, officers may consult with officials of other federal or state agencies if the applicant has been declared disabled by another agency, and the INS officer believes that such a consultation would assist with the disability determination process. The fact that a person has been declared disabled by another federal or state agency does not mean that the person will automatically be granted a section 312 exception. The INS officer also has the authority to request additional medical records on the applicant, but only in instances where there is a well founded belief that such documentation would allow the officer to accurately adjudicate the request for a session 312 exception.

The decision on the N-648 should be made at the beginning of the interview, prior to the review of any other naturalization requirements. Applicants are still required to meet the other requirements for naturalization, including residence and good moral character.

For cases where the N-648 cannot be approved, the applicant should be advised that the N-648 is not being approved and should be offered the opportunity to be tested on the civics and the language requirements and the INS officer should proceed with the interview in English (assuming the applicant is not exempt under either 50/20 or 55/15 for the English waiver).

Evidence of fraud by the medical doctor is handled in similar to discoveries by the INS officer of document fraud. Documented evidence of an applicant knowingly using the services of a fraudulent medical source shall result in the application for naturalization and request for a disability-based exception being denied.

The INS has been advised to make accommodations on behalf of certain individuals with disabilities. For example, blind individuals not requesting an exception may be supplied with materials in Braille, large print, or questioned orally on section 312 civics questions. Hearing impaired persons may be offered a written test on civics questions, and must be provided with a sign language interpreter if one is requested. A person with a learning disability might be given a written civics test and granted additional time to complete the test. Persons with significant disabilities could respond to questions in a yes or no format, or through nodding their heads or blinking their eyes yes or no to particular questions. This list is not all inclusive.

A family member or person holding legal guardian status for a naturalization applicant with disabilities may also sign the N-648 on behalf of the applicant. The necessary signature on the N-648 relates to authorizing the release of additional medical records to the Service.

Since Congress did not expressly waive the oath requirement when it passed this section 312 amendment concerning disabilities, the oath is required for all applicants.

Any applicant whose application for naturalization is denied may submit a new N-648 with supplemental documentation, including medical evidence, prior to the reconsideration hearing.