Dear Atty. Lou,
My sister Anna is a green card holder residing in California. She is suffering from a kidney end stage renal disease and is seeking a donor for a kidney transplant. We have a brother, Mark, in the Philippines who has been evaluated to serve as my sisters donor. He was found to be a perfect match and agreed to donate his kidney to our sister.
Unfortunately, my brother applied for a visa at the US Embassy in Manila but was denied issuance of one. He is now unable to come to the US to donate his kidney.
In the meantime, my sister Anna receives daily peritoneal dialysis treatment and actively attends monthly meetings with her outpatient clinic peritoneal dialysis charge nurse, the clinic dietitian, her clinic social worker and her nephrologist. She is found to be an excellent transplant candidate.
I would like to know how my brother may obtain the right visa to enter the United States to donate his kidney and afford him sufficient length of time to recover. There is a pronounced shortage of organs available for donation in America and the average wait is now over 5 years for a deceased kidney donor. Furthermore, the percentage of finding a perfect match, even among family members, is very low. Our brother is among a very short pool of rare donors. Please help.
Sister in Distress
Dear Sister,
You raised a very serious concern about your sister’s medical condition. Kidney transplantation will definitely help her recover especially if biological relationship exists between the donor and the recipient. The need for and identification of an identified kidney donor is very critical. Unfortunately, when the donor is abroad and needs to travel to the United States, obtaining the appropriate visa becomes a challenge especially for first time applicants.
The right visa for your brother is a B2 or a visitor’s visa. The US Department of State defines numerous legitimate activities of visitor visa holder to include among others, visit with friends or relatives, rest and medical treatment. In the case of your brother, his activity falls under “medical treatment” despite the fact that he is the kidney donor. He will have to undergo surgical procedure and needed time to recover thereafter.
You have not mentioned in your letter the reason for the denial of the visitor visa for medical treatment. I will assume that the consular officer has not found sufficient evidence that your brother is returning to the Philippines after his temporary stay in the US. Proving the need for his presence in the US for the medical procedure, being the best kidney donor for your sister, is just one of the many factors the consular officer is looking at to grant the visa. He should also be able to prove the “financial” support he will get when he is in the US and the health insurance coverage for him if any.
There is a December 1, 2001 Memorandum sent by the Department of State to consular posts regarding abuses of the nonimmigrant visas for emergency medical treatment and active labor act at the expense to US hospitals. Consular officers were advised to be judicious in granting visas to those seeking medical treatment and to require proof of sufficient funds to cover all medical treatment and follow up treatment. The letter from the hospital accepting the patient for treatment is not sufficient.
There is no appeal or review of a denial of a B2 visa. However, your brother may re-apply again for a B2 visa but this time he has to come prepared with all sufficient documentation and proof of sufficient funds. This kidney transplantation, just like any medical emergency raises humanitarian concerns and your brother should be issued this B2 visa. If everything else fails, you may try seeking for a humanitarian parole visa directly from the Department of Homeland Security in Washington DC.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)
