U.S. entry ban was lifted as of Jan 4, 2010 :
”As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.”
♦HIV travel and immigration (faq)
I’m HIV+, and I have been waiting for years to file for lawful permanent residence. Does this announcement mean I can now apply for a green card?
HIV is no longer a bar to applying for permanent residence. That being said, whether you are HIV‑positive or not, you still must qualify for a green card through family sponsorship, an employer sponsor, the Diversity Visa Lottery, asylum, or some other means to apply.
Unfortunately, for many undocumented HIV-positive individuals, the biggest obstacle to obtaining a green card is that they have been living in the United States without lawful status. The repeal of the ban, by itself, does not change that.
Do the new regulations mean that I don’t have to qualify for an HIV waiver if I apply for a green card?
Yes. Now that being HIV-positive is no longer a reason to deny someone lawful permanent residence, there is no need to file a waiver.
I have a waiver pending, what do I do?
You or your attorney should send a letter to Immigration explaining that the HIV ban has been lifted, that a waiver is no longer required in your case, and that they should adjudicate your green card application immediately.
Can I get a refund for the $545 waiver fee I already filed?
Unfortunately, no. Immigration law changes all the time, but they don’t refund fees that were appropriately paid at the time an application (or waiver) was filed.
My case was denied because I’m HIV+, can I reopen it?
Maybe. Sorting through which cases can be reopened is one of the most difficult legal aspects of the end of the HIV ban. In general, you probably still need to qualify for the benefit that was denied. For example, if you won the Diversity Visa (DV) Lottery in 2006 but couldn’t go forward with the legal permanent residence application because of your HIV status, you cannot do so now because 2006 DV visas are no longer available.
A family member petitioned for me in the past, but when I learned I was HIV+, I didn’t file for my green card. Can I do so now?
If you have been in the U.S. since December 21, 2000, and your family member filed the visa petition (I-130) for you prior to April 30, 2001, you should now be able to apply to adjust status (if there is a visa available).
If you were in your home country when the visa petition (I-130) was filed, the visa may have been terminated.
My employer petitioned for me in the past, but when I learned I was HIV+, I didn’t file for my green card. Can I do so now?
Maybe. Employer-based visa petitions (I-140s) are valid indefinitely unless they are revoked or withdrawn. If you are still in lawful status in the U.S. and your employer is still willing and qualifies to sponsor you, you should now be able to file to adjust. If, however, your employer filed for labor certification, but did not file the visa petition (I-140), the employer will probably have to begin the process again.
My green card interview is coming up. Will I be tested for HIV as part of my medical exam?
No. The regulations eliminate HIV testing from the green card medical exam. Immigration is in the process of changing the medical examination form (I-693) to remove the HIV testing box. Until the new form is issued, doctors have been instructed NOT to perform an HIV test, and to fill in “no longer required” in this box. If you are worried that a doctor may still think the HIV test is required, you should download the new instructions, print them, and bring them to your medical examination.
Does this mean that HIV status is completely irrelevant to my immigration case?
No. All applicants for lawful permanent residence must demonstrate that they are not “likely to become a public charge.” If you are in relatively good health, being HIV-positive should not be an obstacle to getting a green card. However, in determining whether someone is likely to become a public charge, Immigration can look at all of the circumstances of someone’s life. If you have been in a nursing home or have been too disabled by your HIV to work, it is possible that your application could be denied if Immigration finds that you will not be able to support yourself.
However, since the new regulations remove HIV testing from the medical examination, it is unlikely that your HIV status will come up at all.
I applied for asylum based on being HIV+. Does the end of the HIV ban affect my application?
It shouldn’t. To succeed in an application for asylum, someone must prove that they have a well-founded fear of persecution based on being HIV-positive. The fact that the U.S. has ended its discriminatory policy toward foreign nationals with HIV is not relevant to whether an asylum seeker would face persecution in her country of origin.
Can my HIV+ partner obtain a visa to come to the United States for a visit?
Probably. The new regulations no longer prevent an HIV-positive person from obtaining a visa. However, as with a permanent residence application, your partner still has to show that he qualifies for a visa. For example, if your partner wants to come to the United States as a tourist or a visitor, he must always prove that he intends to return to his country at the end of his authorized stay in the U.S. If he cannot demonstrate that he intends to return home, it is unlikely that he will be issued a visa.
Although immigration officials should no longer ask about HIV for short-term visitors, if a person’s HIV status was previously known to Immigration, an official might count this against his visa application, reasoning that someone with HIV would be more likely to remain in the U.S. to receive treatment here.
If Comprehensive Immigration Reform (CIR) passes, will it help me?
No one can say for sure at this point what form immigration reform will eventually take. However, the repeal of the HIV ban means that when Congress creates a path to legalization, HIV will not prevent you from legalizing your status.
I am not a citizen and I have been afraid to get HIV medical treatment for fear that I’d be placed in deportation proceedings. Is it now safe for me to get treatment?
Yes. Being HIV-positive was actually never a ground to begin deportation proceedings against a non-citizen. HIV care and medication is available regardless of immigration status through the Ryan White Program and the AIDS Drug Assistance Program (ADAP). If you need to access emergency care, hospitals in some states do inquire about immigration status before providing services.
I’m still confused about how the repeal of the ban affects me, what should I do?
Immigration law is very complicated and this pamphlet just provides the basics. If you have questions about your own legal situation, please contact Immigration Equality.
♦New York Immigrant AIDS Link
In 2001, AFA created a program to provide social services to immigrants living with HIV or AIDS called New York Immigrant AIDS Link. All our services are provided at our New York Headquarters. The model of the program is designed to help immigrants living with HIV or AIDS to acquire supportive/social services in order to improve their quality of life.
The Immigrant AIDS Link (NYIAL) program understands the difficulties immigrants encounter in adjusting to a new environment, language, and culture, especially when dealing with health issues. NYIAL program helps individuals to cope with all these diverse issues in a confidential and non-judgmental environment where they will receive the support necessary to overcome these barriers.
The New York Immigrant AIDS Link program is also involved in HIV testing and prevention with immigrants because they are at higher risk than other populations of acquiring HIV. With the assistance of the Mexican Dominican Republic and Colombian consulates AFA has been able to conduct these services. In addition, AFA is committed to educating and training individuals to become peer educators in order to conduct HIV testing and prevention in their communities.
Who can join?
Any immigrant regardless of their legal status, who is residing in the New York City metropolitan area and is living with HIV or AIDS.
NYIAL services include
- Case Management
- Individual and group counseling for people living with HIV, their caregivers and family
- HIV/AIDS Peer Education Training
- Treatment Education
- Immigration Counseling
- Translation Services
- Referrals (legal services, ambulatory HIV clinics, mental health, housing, domestic violence, ESL and GED )
- Hospital Escort
- One-on-one Adherence Education
- Support Groups:
- Womens Support Group
- MSM Support Group (men who have sex with men)
- Heterosexual Male Support Group
- Health Education
How does one enroll?
Applications to NYIAL Program are handled by a specialized case management team.
To learn more about how to enroll contact (212) 337-8043
Dario Jimenez firstname.lastname@example.org
Jonathan Capote Jcapote@aidforaids.org
David Mosquera Dmosquera@aidforaids.org
Applications are available in English and Spanish.
How to Get Health Care if Undocumented
- Ask your local AIDS service organization (ASO). Many can assign you a case manager who will help uncover the options available to you for HIV care and treatment. Find your local ASO at directory.poz.com.
- Even if you have no health insurance, funds are often available to pay for your health care. Ask your ASO case manager for information.
- Find a community health center (by asking at a local hospital). These public clinics are devoted to serving the health care needs of low-income members of their communities. Most have an open-door policy when it comes to a patient’s ability to pay.
- If they don’t ask, don’t offer. Many clinics never ask for proof of citizenship, so you need not mention it. Some may require you to live in the area; as proof, they might request a utility bill or just a letter from someone you live with.
- Know that health care workers are unlikely to report you to immigration authorities. Federal laws discourage anyone in a health care setting from revealing patients’ confidential information. While immigration status is not necessarily covered by this, most providers won’t divulge your information. Your best bet is a community clinic, where your health care needs are most likely to take priority over any interest in your immigration status.
- Request a translator. Federal law requires health care facilities that receive any Medicaid or Medicare funds to provide translators.
- Advocate for yourself! “The worst thing to do is to hide in fear,” says Charles King, CEO of New York City’s Housing Works. “Then you effectively deny yourself the care you need.”
How to Support Human Rights for All
Since Arizona instituted its draconian immigration reform, numerous other states have tried to put copycat laws on their books. In June, Alabama passed legislation even more severe than Arizona’s, making it a crime, for example, to transport or enter into a lease with an undocumented individual. At press time, the Obama administration had moved to block the law.
But the administration had its own policy problems: The federal Secure Communities program, which mandates that information on any arrestee be given not only to the FBI but also to the U.S. Immigration and Customs Enforcement (ICE), has been a target of widespread protests. For more details on how the issue of immigration reform affects the HIV population, and what you can do to advocate for fair immigration policies, click here.
How to Take Steps to Become a Citizen
Paths to citizenship include political asylum due to persecution in your home country, sponsorship by a relative or employer and aid for victims of domestic violence or human trafficking. Organizations that can help you find free or low-cost legal representation include the HIV Law Project -(hivlawproject.org; 212.577.3001), National Lawyers Guild Immigration Project (nationalimmigrationproject.org; 617.227.9727), Immigration Equality (immigrationequality.org; 212.714.2904, 202.347.0002), ACLU Immigrants’ Rights Project (aclu.org/immigrants-rights; 212.549.2500), and American Immigration Lawyers Association (aila.org; 202.507.7600).
Special Waiver needed until 2010
Be aware that if you have received a waiver for HIV status before the ban, you may be subject to extra screening when you come through immigration. The fact that the waiver is no longer required still hasn’t stopped immigration officers from seeing HIV+ status as a red flag. The best option would be to renew your passport.