From 1993 until January 4, 2010, HIV was considered a ground of inadmissibility, meaning that HIV-positive foreign nationals could be denied short-term visas or applications for lawful permanent residence simply because of their HIV status. Fortunately, that discriminatory law came to an end in the beginning of 2010. HIV status can still be relevant to immigration cases, however, and Immigration Equality remains committed to working with HIV-positive foreign nationals and their families.
Furthermore, HIV status may be a reason to be granted asylum in the U.S., or it may be used as an exception to the one year filing deadline in asylum cases. Anyone thinking about applying for asylum based on HIV status should review our asylum materials carefully and then consult with an experienced immigration attorney.
Finally, as immigration detention grows, so do problems for HIV positive detainees. If you or a loved one are being denied appropriate HIV care in detention or are being mistreated in other ways, please let us know.
The HIV Ban
On January 4, 2010, the HIV ban on travel and immigration, which had been in place for two decades finally came to an end. With the end of the HIV ban, being HIV positive is no longer an automatic ground of “inadmissibility.” For foreign nationals seeking to enter as tourists or short-term visitors, being positive should not be an issue at all. For lawful permanent resident applicants, being HIV-positive could still affect USCIS’s determination about whether you are “likely to become a public charge.” While doctors will no longer perform an HIV antibody test as part of the medical examination, the doctor could ask questions about your overall health which could lead the doctor to conclude that you are HIV positive. While you may not have to volunteer information about your HIV status, you must always be honest with the doctor performing your medical exam. In addition, immigration and consular officials are permitted to take your health into account when determining whether you are likely to need government assistance, which can be a ground for denying a green card application.
Historical Information and Links to Important Documents
After a 60 day waiting period, the final regulations which were published by the Department of Health and Human Services on November 2, 2009, became law. The regulations remove HIV from the list of “communicable diseases of public health significance,” meaning that anyone seeking to enter the U.S. as a visitor can now do so without having to disclose his or her HIV status. The regulations also remove the HIV testing requirement for lawful permanent resident applicants.
As the lengthy bureaucratic process of publishing the regulations and issuing guidance on their implementation unfolded, there were several significant memoranda be issued by various U.S. government agencies about the end of the ban. The United States Citizenship and Immigration Services issued two memos about implementation of the end of the ban. On September 15, 2009 USCIS issued a memo which provided guidance on adjudicating cases before the January 4, 2010 change in the law. Specifically the memo instructed officers not to deny cases based solely on a person’s HIV-positive status, but rather to hold them in abeyance until the change in the law.
On November 24, 2009, USCIS issued further guidance to its officers on adjudicating cases after January 4, 2010. Namely, the memo reiterates 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. It also provided that upon a motion with the proper fee, applications that were denied solely because the applicant was HIV positive after July 2, 2009 (the date that the final regulations were published) may be reopened.
At long last, on December 17, 2009, the Department of State issued a Q and A explaining the end of the HIV ban. This is very important because individuals seeking visas abroad (either short-term or for permanent residence) must do so with U.S. consulates which are part of DOS, not USCIS. The guidance makes it clear that after January 4, 2010, HIV is no longer a reason to deny visas. However, if you are having any problems with your consulate, please let us know.
Also, the Centers for Disease Control recently sent a letter to all doctors who conduct immigration medical exams. USCIS has updated the I-693 form to eliminate the box for HIV testing. Some doctors, however, may continue to use the old form. If they do, physicians are instructed not to test for HIV and to simply fill in “no longer required” in the box.
The end of the HIV ban was the culmination of incredibly hard work by a broad coalition of immigration, HIV, LGBT and human rights organizations. Together, we mobilized over 23,000 comments in favor of lifting the ban and fewer than 550 comments against lifting the ban. Significantly, over 400 organizations submitted or signed onto comments calling for an end to the ban and there were no organizational comments that asked HHS to keep the ban in place. Immigration Equality was among the organizations that submitted comments in full support of the proposed regulations.
None of this would have been possible without the leadership of Senators John Kerry and Gordon Smith and Congresswoman Barbara Lee, who led the fight in Congress in 2008 to remove the statutory HIV ban.
HIV-Based Immigration Applications
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 health significance” and removing the HIV test from the routine medical exam for lawful permanent resident applicants.
Do the new regulations ending the HIV ban have any effect on my HIV-based application for asylum or hardship-based application?
No. An HIV-positive individual seeking asylum on that basis, is applying because he or she fears persecution in his or her country of origin based on being HIV-positive. The fact that the U.S. has now ended its own discriminatory immigration policy towards people with HIV is not relevant to whether or not an applicant will face persecution or hardship in his or her country of origin.
Is it possible to get a “green card” based on the hardship I would face if I had to go back to my country because of my HIV-positive status?
Prior to changes in the immigration law in 1996, it was possible for undocumented foreign nationals who had been in the U.S. for long periods of time and could prove extreme hardship if they would be deported to obtain legal permanent residence through “suspension of deportation.” That immigration benefit no longer exists. It was replaced by “cancellation of removal” which allows certain undocumented foreign nationals to obtain lawful permanent residence, but only if they can show extreme and exceptionally unusual hardship to their United States citizen or lawful permanent resident immediate relatives; hardship to self is no longer recognized as a ground to gain lawful permanent residence.
Is it possible to apply for asylum based on being HIV-positive?
While the Board of Immigration Appeals has held that persecution because of sexual orientation can be a reason for asylum, there is no similar decision by an appeals court requiring asylum officers or immigration judges to consider HIV-related persecution as a basis for asylum. Nevertheless, there have been a few cases where individuals have been granted asylum solely because of their HIV status. In general to win asylum an individual must prove “persecution” not “hardship” so in most cases it would not be sufficient to show that HIV medication would not be available because the home country is economically under-developed. However, if you are a person living with HIV who fears mistreatment because of HIV related stigma in your country of origin, you should consult with an experienced immigration attorney. There have been many asylum cases granted where the applicant makes a claim based both on being gay and being HIV-positive.
I have AIDS and believe that if I am returned to my country where there is no treatment available, I will not live very long. Is there any humanitarian basis for me to stay in the U.S. and receive treatment?
In very limited circumstances, the Department of Homeland Security (DHS) can grant “deferred action” status meaning that it gives permission for a foreign national to remain in the U.S. temporarily because of an extremely compelling humanitarian circumstance such as a late stage terminal illness. (Note that this form of “deferred action” is distinct from Deferred Action for Childhood Arrivals, (“DACA,)” which is available to certain individuals who arrived in the United States as children and who meet other eligibility requirements.)
Individuals lacking valid immigration status who apply for deferred action on this basis run a real risk that their requests will be denied, and that Immigration and Customs Enforcement will take steps to remove them from the United States.