< back
 
 
NEW INS RULES EASE NATURALIZATION REQUIREMENTS FOR DISABLED
On March 19, 1997, the Immigration and Naturalization Service released a new regulation defining a "physical or developmental disability or a mental impairment" with respect to applicants seeking an exemption from the history and English parts of the naturalization examination. The regulation carries out revisions to the Immigration and Nationality Act included in the Technical Corrections Act of 1994 that call for an exception to the requirements of demonstrating an understanding of the English language, including an ability to read, write and speak words in ordinary usage, and of demonstrating a knowledge of the fundamentals of the history and government of the United States for certain applicants unable to comply with both requirements because of a "physical or developmental disability" or a "mental impairment."
The new rule is effective March 19, 1997, though the INS is seeking comments until May 19, 1997. 
Under prior law, there existed an exception for persons with disabilities with regard to the English language requirements for naturalization. The new law marks the first time Congress has authorized an exception for the civics requirement for any individual applying to become a citizen.
On August 28, 1996, the INS issued a proposed rule carrying out the new law. After receiving more than 200 written comments, the INS decided to substantially modify its proposed rule as well as invite further comments to use in drafting a future version of the regulation.
The new regulation defines "impairment" to include a "medically determinable physical or mental impairment or combination of impairments which has lasted or is expected to last at least 12 months." "Medically determinable" includes an impairment that "results from anatomical, physiological or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques to have resulted in functioning so impaired as to render an individual unable either to demonstrate an understanding of the English language, fulfill the requirements for English proficiency, even with reasonable modifications to the methods of determining English proficiency, or demonstrate civics knowledge." Note that the regulations DO NOT cover persons who have a reduced capacity to learn English due to age alone. The regulations do seem to cover a wide range of cognitive disorders including Alzheimer's Disease, depression, and post-traumatic stress disorder.
Interestingly, the use of the phrase "combination of impairments" opens the door for persons who have specific ailments that alone would not qualify them for the waiver, but taken as a whole, do make a person physically or mentally unable to take the test. For example, a person who has mild dementia who also suffers from hearing loss or blindness may not be able to learn the required English and civics information.
A significant change from the proposed rule is that the applicant does not need to go to an INS-approved Civil Surgeon. Instead, the applicant can go to any medical doctor or clinical psychologist licensed to practice in the United States as long as the professional is experienced in diagnosing those with physical or mental medically determinable impairments and shall be able to attest to the origin, nature, and extent of the medical condition as it relates to the disability. Note that the INS may request a second opinion if there is a legitimate basis for this and a supervisor approves the request for the second opinion. INS officers may also consult with a certifying doctor or psychologist or may consult with other agencies, including the Social Security Administration. As a check against abuse, physicians must attest to the veracity of the opinion, make available the patient's medical records and be informed of the criminal penalties of deliberately lying. 
The physician or psychologist is required to complete the new Form N-684 which is now available from the Immigration and Naturalization Service Forms Center at 1-800-870-FORM or from the March 19, 1997 Federal Register. The form must be attached to the N-400 naturalization application form at the time the N-400 is submitted. If an N-400 application is already pending, an N-684 can be submitted at the time of the interview. The N-684 should NOT be mailed or submitted separately from the N-400.
Those applicants granted an exemption from the English and Civics exams still are required to attend an interview. If the applicant is granted test the exemptions at the interview may be sworn in right away or notified at a later date of the time and place of the naturalization ceremony.
The INS chose not to change the requirement that an applicant show the ability to take a "meaningful oath of allegiance." The INS did, however, indicate a willingness to amend current guidance documents to allow more flexibility by allowing less formal means of assent. An applicant will be able to naturalize simply by offering some physical or verbal signal that they understand what is going on. Nods, blinks, or other signals can work. 
In the commentary accompanying the regulation, the INS notes that it is not including language calling for expedited handling of naturalization cases for disabled applicants. Many persons commenting on the proposed regulation requested this since many disabled applicants could lose need-based government benefits without a determination of citizenship. The INS noted that to ensure "fairness and equity," it must process applications in chronological order by date or receipt. However, it did note that any applicant able to show evidence of an emergent circumstance may request an exception to this policy from the local district director and that it is within the discretion of the district director to either grant or deny a request for expedited processing of any Service adjudication. Note, however, that the INS has indicated that it does not believe that loss of benefits will constitute an "emergency" sufficient to take an application out of chronological order.
The new regulations do not affect another regulation exempting from the English exam persons over fifty years of age who have been living in the US for 20 years or persons over fifty-five years of age who have been in the US at least 15 years. Also, applicants over the age of 65 with 20 years or permanent residence may be granted "special consideration" regarding the civics test. These waivers are not contingent on showing a disability.
< Back | Next >
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.