CATF would like to thank Robert Thaxton for donating his time and service to those affected by HIV/AIDS.
The following list of questions and answers is meant to provide you with general information regarding immigration and HIV. Each case is different, so you should not rely on these general statements of the law. You should contact an attorney in order to discuss your specific case and to determine your rights under the law.
I. Immigration Law Introduction
In general, Immigration law is divided into two categories: one for non-Immigrants and one for Immigrants. Nonimmigrants are those persons who are coming to the United States on a temporary basis. The B visa (visitor), F-1 visa (student) and H-1B visa (temporary professional worker) are three examples of nonimmigrant visas that permit persons to remain in the United States for a temporary period of time.
The immigrant category, on the other hand, is for those foreign persons who wish to remain in the United States on a permanent basis. The immigrant category is also referred to as obtaining “permanent residence,” and the immigrant category also has the nickname of obtaining a "green card."
II. Non-Immigrant Category Questions and Answers
A.
If someone is HIV positive, is that person able to
come to the United States in order to visit or to go to school?
ANSWER: Generally, United States law specifically bars persons who are HIV positive from coming to the United States on a non-Immigrant visa.
B.
Can I obtain a waiver of that bar in order to enter
the United States on a non-Immigrant visa?
ANSWER: Some people may qualify for a waiver which would allow them to enter the United States on a non-Immigrant visa even if they are HIV positive. There are two types of waivers available for HIV positive nonimmigrants:
1. Routine Waiver: If you plan on staying in the United States for a period of thirty days or less to attend conferences, receive medical treatment, visit close family members, or conduct business, you may qualify for a waiver. In order to qualify, you would have to prove the following:
a. You are not currently afflicted with symptoms of the disease;
b. You have sufficient money to cover any medical expenses you may have while you are in the United States;
c. You are staying in the United States for thirty days or less; and
d. Your visit to the United States will not pose a risk to the public health of the United States.
2. Blanket Waiver: A blanket waiver means that you are coming to the United States to participate in a “designated event.” A designated event can be a conference or sporting event or any other event designated by the United States government. The government will decide whether an event is a “designated event” before you apply for your nonimmigrant visa. All participants in the “designated event” will be admitted to the United States for the duration of the event.
C. What if I am coming to the United States on a K visa (fiancé) or a V visa (family unity), or if I am changing my status in the United States to a V visa? My intent is to remain in the United States for more than thirty days. Will I qualify for a waiver?
The law recognizes that the intent of a person coming to the United States on a K visa or a V visa is a little different than other nonimmigrant visas. Unlike other nonimmigrant visas, the intent of a person coming to the United States on a K or V visa is to remain in the United States permanently, not for a temporary period of time. Therefore, a person who is coming to the United States on a K visa or a V visa, or a person who is in the United States and wants to change their status to a V visa will need to file a waiver similar to the waiver for immigrant visas (see below).
III. Immigrant Visas
A.
If I am HIV positive, am I able to obtain my green
card to live and work in the United States permanently?
The United States laws
specifically bar persons who are HIV positive from obtaining green cards to
live and work in the United States permanently.
Like with non-Immigrant visas, however, waivers are available in certain
circumstances which would permit a person who is HIV positive to obtain his or
her green card.
B.
Under what circumstances can a person obtain their
green card to live in the United States permanently?
A person can obtain his or her green card in four main ways in the United States: (1) through the diversity lottery; (2) through an employment relationship; (3) through a family relationship; and (4) by entering the United States as a refugee or obtaining political asylum after a person has entered the United States.
C. Under what circumstances will I qualify for a waiver of my HIV positive status?
A person who is HIV positive will only qualify for a waiver if that person is able to establish (1) that he or she is the parent of a United States citizen or green card holder, (2) that he or she is the unmarried child of a United States citizen or green card holder, or (3) that he or she is the opposite-sex spouse of a United States citizen or green card holder.
For asylees and refugees, a waiver can be granted for humanitarian reasons in addition to the above-listed family relationship.
D. What if an employer in the United States wants to hire me for a job in the United States, but I am HIV positive and I have no relatives who are United States citizens or green card holders?
Unfortunately, the current law does not provide a waiver for you. Therefore, you application for a green card would be denied.
E. If I have a relative who is a United States citizen or green card holder, what must I prove in order to qualify for the waiver?
Generally, a few forms will have to be completed on your behalf by you, your doctor, and the local health department. (The forms are slightly different if you are filing for a green card based upon having entered as a refugee or if you are filing for a green card based upon obtaining political asylum after entering the United States. You should consult an attorney to make sure you have the correct forms). In addition to the completion of the forms, you will have to prove the following three points:
1. The danger to the public health of the United States is minimal if you are approved for your green card;
2. The possibility of the spread of the infection created by you obtaining your green card is minimal; and
3. There will be no cost incurred by any level of government agency of the United States without the prior consent of that agency.
F. How can I prove these three points in order to qualify for a waiver?
1. In order to prove that the danger to the public health is minimal and the spread of the infection is minimal, you will generally want to show evidence of the following points:
a. Evidence that you have arranged for medical treatment in the United States;
b. Evidence that you are aware of the nature and severity of the disease;
c. Evidence of counseling;
d. Evidence of your willingness to attend educational seminars and counseling sessions; and
e. Evidence of your knowledge of the modes of transmission of the disease.
In order to show evidence of these points, you will want to have a combination of letters from your doctor, any person from whom you have received counseling (if any), a case worker (such as your case worker with the Columbus AIDS Task Force), and an affidavit from you.
2. In order to prove that no cost will be incurred by any level of governmental agency of the United States without the prior consent of that agency, you will generally want to show evidence of any of the following:
a. Evidence of private insurance;
b. Evidence of personal financial resources;
c. Proof that a hospital, research organization or other type of facility will provide you with treatment at no cost;
d. Letter from a governmental agency stating that they are aware of your HIV positive status and have consented to pay for that treatment; or
e. Any other evidence that you may have to show that the government will not have to pay for your medical treatment.
G. What if I entered the United States as a refugee or I received political asylum after I entered the United States. When I am ready to file for a green card, do I still have to file for a waiver?
Yes. You still must file for a wavier, but there are a few differences that must be noted:
1. As noted above, the forms for an HIV waiver for asylees and refugees are different than the general waiver form. Make sure you consult with a lawyer in order to fill out the correct forms.
2. In addition to family relationships, refugees and asylees filing for green cards may file a waiver if “humanitarian reasons” exist to approve the waiver.
3. If you are filing for a green card as a refugee, you do not have to prove the third part of the waiver, meaning that you do not have to prove that no cost will be incurred by any level of governmental agency of the United States without the prior consent of that agency. Asylees, however, still must prove the third part of the waiver.
These questions and answers are meant as a starting point for you in your discovery of your rights under the laws of the United States. You should consult with an attorney in order to discuss how your specific case will be treated the United States.
Prepared by: L.
Robert Thaxton, Attorney at Law
Bloomfield
& Kempf
175
South Third Street, Suite 505
Columbus,
Ohio 43215
Telephone: 614-224-9221, ext. 15
Facsimile: 614-224-9464