On July 30, 2008 President Bush acted to end the statutory ban on entry to the U.S. by people with HIV. Until now, only HIV was singled out in the immigration law for exclusion. In signing the President’s Emergency Plan for AIDS Relief (PEPFAR), Bush repealed the statutory ban on HIV-positive tourists and immigrants, and restored jurisdiction to the Department of Health and Human Services (HHS) to determine whether HIV is a “communicable disease of public health significance.”

For now, if you are HIV positive and planning to travel to the U.S. or planning to apply for legal permanent resident status you must still obtain a waiver of inadmissibility.

Who qualifies to apply for a waiver to the HIV ground of inadmissibility?

To qualify to apply for an HIV waiver, an applicant must be:

  • The spouse of a U.S. citizen or legal permanent resident; or
  • The unmarried son or daughter of a U.S. citizen or legal permanent resident; or
  • The minor, unmarried lawfully adopted child of a U.S. citizen; or
  • The parent of a son or daughter who is a U.S. citizen or legal permanent resident; or
  • Eligible to self-petition under the Violence against Women Act (i.e. the abused spouse of a U.S. citizen or legal permanent resident); or
  • A Refugee or Asylee who falls under a “humanitarian” exception to the HIV bar

If I am a refugee or asylee already in the U.S. and I have tested positive for HIV, can I still get my green card?

No. If the required medical exam indicates that you are HIV-positive, you are considered inadmissible. However, as an asylee or a refugee, you may still apply to adjust your status to permanent residency by filing for a waiver after one year of continuous residency in the U.S.

To file for a waiver and overcome inadmissibility on the grounds of HIV status, you must complete an Application by Refugee for Waiver of Ground of Excludability (Form 1-602). This waiver must show that you should be admitted:

  • for humanitarian purposes;
  • for family unity; or
  • because it is otherwise in the public interest.

In order to satisfy the terms of the waiver, you should submit a letter from your physician with the application for waiver form. The doctor’s letter should say that you have been educated about HIV transmission and you are receiving appropriate treatment for HIV. If you have relatives who are U.S. citizens or permanent residents in the U.S., be sure to bring this information to the attention of the U.S. Citizenship and Immigration Services (USCIS) examiner.

Note: Because U.S. immigration laws change often regarding HIV infection and AIDS, if you are not a citizen but are HIV-positive, you should see an immigration specialist.

See also…

Green Card Issues

Immigration Law