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Home > Issues > HIV Issues > Primary Source Materials
On January 4, 2010, the Department of Health and Human Services (HHS) final regulations went into effect, removing HIV from its list of "communicable diseases of public healthsignificance" and removing the HIV test from the routine medical exam for lawful permanent resident applicants. If you are unsure of how the change in the law will affect your case, please call or e-mail our office.
On September 15, 2009, USCIS issued a memo stating that anyone whose lawful permanent resident (green card) application would be denied based solely on the person being HIV-positive, would have their green card application held in abeyance (that is set aside temporarily) until after the rule change on January 4, 2010.
On November 24, 2009, USCIS issued further guidance to its officers on adjudicating cases after January 4, 2010. Namely, the memo re-iterates that HIV will no longer be a ground of inadmissibility, that waivers for individuals with HIV will no longer be required, that HIV anti-body testing will no longer be a part of the medical exam for lawful permanent resident applicants, and that, upon a motion with the proper fee, applications that were denied after July 2, 2009 (the date that the final regulations were published) may be reopened.
On December 17, 2009, DOS issued a Q and A on the end of the HIV ban, instructing consular officers that HIV is no longer a ground of inadmissibility, and that HIV-positive visa applicants can now answer "no" to the question, "do you have a communicable disease of public health significance?"
The CDC sent a letter to physicians who conduct medical examinations instructing them on how to fill out form I-693 until it is revised to remove the HIV testing requirement. The letter clarifies that after January 4, 2010, no one should be tested for HIV in connection with an immigration application.
In 1996, then INS issued a Memo stating that HIV positive status could be grounds to seek asylum and that Immigration should seek to grant discretionary relief to individuals who are HIV positive. That Memo is reproduced here. HIV asylum memo.pdf
New York State prohibits medical and social services providers from disclosing any confidential HIV-related information about their patients/clients without first obtaining a signed release from the individual. General medical releases are not sufficient to release HIV information. Additionally, while it the HIV release is not strictly required for attorneys, it is best practice in New York to have a client sign an HIV release before the attorney releases HIV information to any outside individual or agency (including CIS.) The New York State HIV form can be downloaded here. HIV release-HIPAA compliant.pdf
THE FOLLOWING PRIMARY MATERIALS ARE FOR HISTORICAL PURPOSES ONLY -- THEY SHOULD NOT BE RELEVANT AFTER JANUARY 4, 2010 SINCE THE HIV BAN HAS ENDED.
Although the statutory HIV ban has been in effect since 1993, it is still difficult to get information about applying for HIV waivers. The forms that are used to file for HIV waivers, forms I-601 (for family-based eligibility) and I-602 (for refugees and asylees) require a special HIV supplement which is not available on the CIS website. You can download the form here. HIV Waiver Supplement.pdf
Until recently (2007), HIV waiver applicants who reside in New York were not required to have the waiver supplement endorsed by a local or state health officer and were able to use a slightly different version of the HIV waiver supplement. However, applicants who have used the NY supplement have recently had their waiver applications returned with a requirement that they be endorsed by the local health officer (that is the Department of Health), so we have removed the NY state form from our website.
In 2004 CIS released a Memo which details the eligibility and application process for individuals with HIV who are applying for K (fiance/fiancee) visas or V (individuals outside the country with long-standing approved immigrant visa petitions). HIV waiver memo.pdf
In 2002, CIS issued a comprehensive Memo on adjudicating medical waivers including but not limited to HIV waivers. This long (55 page) Memo, has important information about both non-immigrant waivers and waivers for legal permanent resident applicants, as well as information about vaccination requirements. 2002 HIV Immigration policy memo.pdf |
