TIPS: Technical Information Perspectives and Solutions—March 2008 IMMIGRATION ISSUES AND THE ADA Copyright © 2008 The DBTAC: Southeast ADA Center publishes a variety of TIPS intended to provide current and useful information about ADA-related issues and concerns for information specialists, advocates, business owners, government agencies, managers, and the general public. The examples used in the TIPS are based on actual questions received by the Southeast DBTAC. They are designed to strengthen the capacity of those who provide information and technical assistance to help others achieve effective compliance with the Americans with Disabilities Act. The TIPS reflect the best professional judgment of the Southeast DBTAC staff and its regional affiliate network. If you have questions or suggestions about how to improve TIPS, please contact the Southeast DBTAC by sending an email to sedbtacproject@law.syr.edu. Copyright Permission For copyright permission, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Organizations may reproduce this fact sheet for non-commercial use provided they acknowledge the Southeast DBTAC as the copyright owner and include the following credit statement: Reprinted from the DBTAC: Southeast ADA Resource Center website at www.sedbtac.org. Question: If an individual with a disability is unable to take the English and civics tests because of the nature of their disability, is the immigration office required to modify its requirements under the ADA or Rehabilitation Act and waive the required civics test for the individual? Response The Immigration and Naturalization Act provides that the English and civics requirements shall not apply to any person who is “unable to demonstrate a proficiency of the English language or knowledge of U.S. history and government” because of a medically determinable physical or mental impairment that has lasted, or is expected to last at least twelve months. However, this exception is not based on complying with the Americans with Disabilities Act of 1990 (ADA) or the Rehabilitation Act of 1973. A U.S. Citizenship and Immigration Services (USCIS) interoffice memorandum dated September 18, 2007 explains that naturalization applicants who meet these criteria “may submit Form N-648 in order to establish eligibility for an exception to the English and/or U.S. history and government requirements.” A naturalization applicant seeking this exception must submit Form N-648 (Medical Certification for Disability Exceptions) at the time s/he submits the N-400 (Application for Naturalization). Unless the naturalization applicant is asked by USCIS to submit additional N-648 forms, the N-648 only needs to be submitted once. The USCIS has taken the position that doubts are raised as to the legitimacy of the naturalization applicant’s disability when the applicant files late or multiple N-648 forms. N-648 Waiver Requirements Form N-648 must be completed by a medical doctor, a doctor of osteopathy, or a clinical psychologist licensed to practice in the United States (including Guam, Puerto Rico, and the Virgin Islands), and submitted to the USCIS within six months. While the licensed professional completing the N-648 need not be a specialist, he/she must have appropriate experience and qualifications to diagnose and assess the claimed disability and/or impairment. For example, a certification by a general practitioner regarding a mental disability will be acceptable if the general practitioner has appropriate experience and qualifications to diagnose and assess that type of disability. For an applicant to qualify for the exception, a medical professional must confirm that the applicant has a medically determinable physical or mental impairment. The medical professional should establish and document the “nature and extent of the diagnosed medical condition and how the applicant’s diagnosed condition has impaired functioning so severely that it has rendered the applicant unable to learn or demonstrate knowledge of English and/or United States history and government.” In providing this information, the medical professional should cite the medically acceptable diagnostic tests and methods used to diagnose the naturalization applicant’s medical condition. A naturalization applicant is not eligible for the exception if his/her disability is the direct effect of illegal drug use. It is important to note that receipt of a waiver from the English and civics tests does not waive any other naturalization requirements. Therefore, those applicants, whose disability exception requests have been accepted, must still establish good moral character, residence, and assent to the oath (unless waived), etc. It is also important to note that the statutory exception requested in a Form N-648 is not the same as a request for accommodations under the Rehabilitation Act of 1973, or a request for waiver of the oath requirement. What If the Applicant Is Able to Take the English or Civics Test With Accommodations? If reasonable modifications and/or accommodations will enable a naturalization applicant to demonstrate knowledge of basic English and civics, he or she is not eligible for a waiver and should not submit an N-648. An applicant who needs a reasonable accommodation to take the tests should contact his or her local USCIS District Office in advance of the scheduled interview to request accommodations under the Rehabilitation Act. In accord with the Rehabilitation Act, USCIS makes reasonable modifications and/or accommodations to allow individuals with disabilities and/or impairment(s) to participate in the English and civics testing required for naturalization. The accommodation or modification does not exempt the applicant from the obligation to satisfy the requirement, but modifies the manner in which the applicant demonstrates that he or she meets the requirement. Accommodations are likely to vary according to the nature of the individual’s disability. For example, an applicant who is unable to use his or her hands should be permitted to take the U.S. history and government tests orally. An applicant who is unable to speak might receive an accommodation that would allow that applicant to respond to questions with a previously agreed upon nonverbal form of assent. Other examples of reasonable modifications and/or accommodations may include but are not limited to: the provision of sign language interpreters, extended time for testing, or off-site testing. Policy & Practice: Definition of Disability. The USCIS, formerly the Immigration and Naturalization Service (INS), originally intended to follow Congress’s recommendation and adopt the definition of disability used in the Rehabilitation Act. Multiple public comments regarding concerns about consistency with existing federal regulations and statutes lead the INS to consult with the Department of Health and Human Services and the Social Security Administration and eventually adopt their definition of disability. This poses the concern that naturalization applicants must navigate two competing definitions of disability if they require an exception or an accommodation to satisfy the English language and U.S. history / government requirements. Illegal Drug Use. The denial of eligibility for the N-648 Waiver to a naturalization applicant who has a disability, which is the direct result of illegal drug use, may exclude individuals with past drug use that has no bearing on eligibility for U.S. citizenship. For instance, past drug use may have contributed to an automobile accident that resulted in a traumatic brain injury. The applicant may have been free of illegal drug use ever since; or the applicant may have had the accident in their country of birth where the drug was not illegal. Resources: The following links provide additional information about Immigration Issues and the ADA. * INS Memo RE: Guidance Clarifying the Adjudication of Form N-648, Medical Certification for Disability Exceptions (Sept. 18, 2007), available at http://www.uscis.gov/files/pressrelease/N648Waiver091807.pdf * INS Memo RE Guidance on Making the Naturalization Process Accessible to Applicants with Disabilities (Jan. 21, 2003), available at www.uscis.gov/files/pressrelease/NatzAccess.pdf   * Medical Certification for Disability Exceptions: Department of Homeland Security, U.S. Citizenship and Immigration Services, Medical Certification for Disability Exceptions (rev. Jan. 13, 2006), available at www.uscis.gov/files/form/N-648.pdf   * Enforcement of Nondiscrimination on the Basis of Disability in Department of Homeland Security Programs or Activities includes information about the complaint process (Mar. 6, 2003), available at www.uscis.gov/propub/ProPubVAP.jsp?dockey=cf9cb1eef8f8c4cfcc43e9cb62e38556 * N-648 Medical Certification for INS Disability Waivers: Instructions for Doctors, Univ. of Wash. (rev. June 2004), available at http://ethnomed.org/immigration/n648njp2000.htm * Guidance on "Disability" for Naturalization (last visited Mar. 4, 2008), available at www.murthy.com/arc_news/a_guide.html * Naturalization Applicants with Disabilities; Coping with a Flawed Process (Nov. 7, 1997), available at www.cyrusmehta.com/News.aspx?SubIdx=201&Month=&From=Menu&Page=122&Year=All * How Immigrants with Disabilities Can Become Citizens (rev. Apr. 22, 1997), available at www.empowermentzone.com/immi2cit.txt * National Immigration Law Center (last visited Mar. 4, 2008), at www.nilc.org/ * Citizenship and Immigration Services Ombudsman Overview Page, Dept. of Homeland Security (last visited Mar. 4, 2008), at www.dhs.gov/xabout/structure/editorial_0482.shtm   * Instructions for Filing a Complaint, Dept. of Homeland Security (last visited Mar. 4, 2008), at www.dhs.gov/ximgtn/programs/editorial_0497.shtm DISCLAIMER: The Disability and Business Technical Assistance Center (DBTAC) – Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant No. H133A060094. However, you should be aware that NIDRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (Voice/TTY). The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute at Syracuse University (BBI) does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials. 4 DBTAC: Southeast ADA Center (Southeast DBTAC) A Project of the Burton Blatt Institute (BBI) of Syracuse University 1419 Mayson Street * Atlanta, GA 30324 * (404) 541-9001 * (800) 949-4232 (v/tty) * (404) 541-9002 (Fax) sedbtacproject@syr.law.edu * www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094