Could I be denied an adjustment in my visa status, from temporary immigrant to permanent resident, if I am diagnosed with HIV?
Yes. You are ineligible for a permanent visa if you have HIV infection. Prior to applying for your permanent visa, you must submit to a medical examination by a U.S. Citizenship and Immigration Services (USCIS) authorized physician. This exam includes screening for HIV infection. You may overcome this ineligibility if you apply for and receive a “discretionary waiver.”
To qualify for a waiver, you must:
- be the spouse, unmarried child, or lawfully adopted unmarried child of a U.S. citizen, or have a child who is a U.S. citizen or lawful permanent resident;
- show the danger you will create to the public health of the U.S. is minimal;
- show the possibility of the spread of HIV infection created by your admission to the U.S. is minimal; and
- show you will not cause any U.S. agency to incur costs without the agency’s consent.
You may be able to satisfy numbers (1) and (2) by presenting a letter from your physician to the USCIS examiner. The letter should describe that you have been educated as to how HIV infection is spread, and that you are receiving treatment for HIV.
If your waiver is granted, you still must pass the so-called “public charge” test by showing that you will be able to support yourself and not be dependent on government benefits. The USCIS will consider your age, health, family status, assets, resources, financial status, and any written statements filed by others on your behalf.
The USCIS will probably consider other factors, such as whether you have a job offer, and whether you can obtain affordable medical insurance. To pass the public charge test, you should find a person who will be a “sponsor” and complete an Affidavit of Support demonstrating that s/he is willing and financially able to assume all costs of your HIV treatment.
In addition, your sponsor must have an annual income of at least 125% of the federal poverty guidelines for his or her family size. As the applicant, you will be considered a member of your sponsor’s family. Your sponsor also must agree to support you until you become a U.S. citizen, or until you have worked for 40 quarters (about 10 years) under Social Security rules.
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.
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