USCIS Issues Memo Not to Deny Green Cards Based on HIV Status Pending Final Rule
USCIS has just issued a memo directing its officers who decide “green card” applications to hold applications in abeyance pending the final HHS rule. In other words, if someone has submitted a green card application and USCIS would deny it based solely on the fact that the applicant is HIV-positive, it will hold off on a decision.
For individuals who are eligible for waivers, USCIS will continue to adjudicate waivers and approve them where the standard is met. If USCIS finds that the applicant does not qualify for the waiver, it will hold the denial in abeyance — that is neither grant nor deny the application, pending the publication of the regulations.
Immigration Equality worked with the American Immigration Lawyers Association to press USCIS to release a memo on this issue and we’re very happy to see another step forward towards fairness under the immigration law for people with HIV.
This is great news for anyone who has filed for a green card hoping that the ban will be fully lifted before USCIS makes a decision on his or her application. As always, if you have a question about your own case, please send it to our legal staff, don’t post your question as a comment here.
[...] encouraging report from the Immigration Equality Blog this morning: [U.S. Citizenship and Immigration Services (USCIS)] has just issued a memo directing [...]
Pingback by HIV-Affected Green Cards Held in Preparation for Final Rule | Asterisk — September 23, 2009 @ 11:14 am
If it is the case, do we still have to conduct HIv blood test for the medical check-up for the greencard application?
Comment by Kim — September 23, 2009 @ 7:39 pm
Kim – yes for now. After the ban is officially lifted, we’ll know whether that rule has been preserved, but if I were to bet I’d say the testing is going to go away.
Comment by Scooby — September 23, 2009 @ 8:35 pm
I know someone applied for a green card in 2006 however pending to a waiver. can he/she go to the US embassy now to claim the green card.
Comment by kin — September 24, 2009 @ 5:49 am
Hi all,
Regarding #3the HIV test as part of the medical exam, the proposed regulations state that this requirement will be removed, so as long as the final regulations are the same as the proposed regulations, there will be no more HIV testing in immigration.
Regarding #4, if your friend has a legal question please have him/her contact us directly. The answer to your question (like most legal questions) will depend on the specific facts of the case.
Comment by Victoria Neilson — September 24, 2009 @ 8:37 pm
Amazing news!
We are a discordant couple while our 18 month old son is negative.We were at the Nairobi US embassy yesterday to collect our visas and my wife was denied because she is HIV positive.We plead for a waiver and they tell us that it is too late (Visas cannot be issued after Sept 30th)
One hour later the embassy CALLS us to tell us that they want to look into my wife’s case and in their own words “plead her case for her”. We were overjoyed as there is a glimpse of hope!
So we return on monday to hear the outcome.
I will keep you posted. God bless.
Comment by Gacksman — September 25, 2009 @ 7:49 am
This is great knews for everyone who has an ongoing immigration process and being HIV+. Thanks once again IE to press HHS to release this memo.
My employment based immigration application was denied on February 18th 2009. Back than, my lawyer appealed and tried to put my process in abeyance citing the ongoing revised regulation process that would make the HHS denial moot (questinable). However, HHS denied the appeal requesting evidence of the new regulations, which could not be provided since the new regulation hasn’t been posted for public comments yet.
Not to jeopardize any future immigration process, I had to leave the USA within 6 months of the denial (not to be illegal for more than 6 months and be banned from returning to the USA). I left the USA, having left there my American partner, home, friends, and an stable former job.
I am glad that no one else will need to go through a similar situation from this point on, until the ban is finally lifted.
My goal now is to try to reopen my former case (if possible since I may have abandoned it by having left the USA). I am still ellegible to apply for another employment based application. I will start another process once the ban is over, or try to reopen the former process which I think could get me the green card sooner than starting all over.
Comment by mneto — September 26, 2009 @ 6:25 am
Does anyone knows approximately how long it takes to approve a form I 602 file together with I 485?
Comment by Jerry V — September 29, 2009 @ 12:44 pm
Jerry – I suggest you take a look at http://www.uscis.gov (Citizenship and Immigration) There they have links to current processing times, depending on which processing center or office that you submit your applications to.
Comment by David NYC — September 30, 2009 @ 9:58 am
I e-mail IE 2 times on my questions without any reply. What should I do? Keep sending it?
Comment by Kim — September 30, 2009 @ 8:20 pm
stories like mnet(above) are heartbreaking… the lives disrupted, time, money, stress …
This is GREAT news lifing the regulations started so long ago is FINALLY moving forward. Sooner the better to END the clearly discriminatory immigration policies towards people with hiv in the US
Comment by Brian — October 2, 2009 @ 1:37 pm
I am crying from happiness and hope, that soon I will be able to adjust my status and back to the normal life.
Comment by bam — October 4, 2009 @ 3:57 pm
Stories like mneto’s have happened for years. I was forced to leave the US five years ago and wonder why the lifting of the ban is happening only now.
Comment by Sergio — October 5, 2009 @ 4:30 am
Can anyone comment on the likelihood the ban will be lifted for travel on/around Christmas time?
Comment by Clint — October 6, 2009 @ 7:27 am
Clint: We do still anticipate that the ban will be formally repealed by the end of the calendar year. Every indication is that the Obama administration is on track to meet its commitment to repealing the ban by December 31.
Comment by sralls — October 6, 2009 @ 8:25 am
Too bad that, as part of the March this past weekend, official word of the end of the ban didn’t happen. Soon folks, soon!!
Comment by David NYC — October 12, 2009 @ 11:45 am
President Obama did mention lifting the ban by this year in his speech in HRC dinner.
Comment by Kim — October 13, 2009 @ 12:53 am
Jeff Crowley said that it will take time to lift the ban:
http://www.ggg.at/index.php?id=68&tx_ttnewstt_news=2500&cHash=83b96604bd
Any info?
Comment by HIVan — October 16, 2009 @ 3:24 pm
how long it takes then? Another 1 year or what?
Comment by Kim — October 16, 2009 @ 4:20 pm
What did Jeff Crowley recently said? The link is no longer valid. Please any info. I hop the ban is lifted within this year.
Thanks.
Norman
Comment by Norman — October 16, 2009 @ 8:33 pm
Below is a bad web translation of the ggg.at story. Basically it sounds like Crowley is saying that all of the 20k+ comments submitted about the reg. change had to be reviewed before the final rule is issued. Sounds kinda lame to me. On the other hand, I have heard some very good news. I know of someone who had their I-485 change of status approved recently, even though they are HIV+. Their case is not held in abeyance, nor rejected – they were granted that Green Card. Maybe the adjudicator for that case exercising some judgement in granting the change of status.
Here is the translation:
The end of the refusal of entry for HIV positives into the USA could pull itself still further into the length. That reports to blog “ondamaris”.
Already under George W. Bush began to convert an end of the prohibition and also the acting president Barack Obama stressed last week with a Galadinner that humanly Rights Campaign, supports he the final abolition of the US refusal of entry for HIV positives. But the devil lies in the detail.
Like that openly gay director of the Office OF communicated national AIDS Policy (ONAP), Jeff Crowley, a kandischen inquiry, gives it too many statements for planned abolishment: “We published a guideline to waive the prohibition. The public had the chance to deliver a statement in addition and we got more than 20,000 statements.” These must be processed before an abolition of the prohibition. However none knows, how can still last long. “We hope that we can publish very soon a guideline”, give ourselves Crowley vaguely.
Comment by David NYC — October 17, 2009 @ 2:07 pm
I am wondering how come there is no US press about the Crowley statement. Does the article mention when the statement was made? It is amazing that I heard the great news of that Hiv+ had his green card.. Is that through employment? Do you know by chance?
Comment by Norman — October 20, 2009 @ 12:37 am
I thought HHS had a limited to reply to the comments and make modifications to the proposed regulation, like 60 days. I don’t think they can drag this as long as they want – especially in light of the comments themselves. The ‘for’ comments are very similar to one another overall (not to mention most of them were submitted as bunch, like HRC’s and IE’s), and the ‘against’ were for the most part very poorly written and offering no rational arguments. I don’t see how they would “respond” to those.
How is Crowley involved in that process anyway? He’s not part of the HHS is he?
Comment by Scooby — October 21, 2009 @ 8:58 am
I meant “limited TIME to reply”.
Comment by Scooby — October 21, 2009 @ 8:59 am
Scooby – I had heard that they needed to respond to “substantive comments”, so yes, likely not all 20k comments. I’m wondering if they’re waiting to announce on World AIDS day on 12/1? The administration has been a bit long on symbolism, and an AIDS day announcement would fit that pattern. And to answer Norman’s question in 22, yes, it was an employment based Green Card.
Comment by David NYC — October 21, 2009 @ 10:54 am
Thanks David for the update.
It’s cool that the employment based case has been granted the green card. Any idea when he filed for the I-485? Are most of you guys on employment base cases? I am in the category of EB3, it is not even current for me to turn in I-485.
Comment by Norman — October 21, 2009 @ 3:20 pm
I have an employment based green card case with my date current for more than one year, so just waiting until this whole thing gets resolved for once and for all
Comment by Andy — October 21, 2009 @ 3:59 pm
Not sure that this is the place to discuss the mechanics of the perm. residence process, but I say speak to your lawyers, and maybe get ready to pull the trigger on the I-485 the day the new regs are announced. Your application will be processed in full accordance of the wonderful beauracracy of USCIS, based on your priority date, (the application I mentioned had a priority date of July 2000) and other factors wrt to your application. The only difference is that HIV will not matter a whit, and you’ll be just another applicant.
Comment by David NYC — October 21, 2009 @ 5:18 pm
Yep, I think it is a good idea to wait until the regs come out before proceeding with any application. I am waiting to file my EB3/EB3 … so thanks Dave, for the update.
Comment by Punda — October 21, 2009 @ 7:07 pm
I wish the ban will be removed once and forever, I have applied for I-485 Since 2003 based on approved Asylem. Also filled for HIV wavier on 2005, till this moment no decision is made to my case I have almost knocked on every door, IE Couldn’t do anything for me, Hired 2 lawyers with no use, I am so frustreted some body tell me what to do more? I really need help .
Comment by Abe — October 22, 2009 @ 4:11 am
good luck Punda and Abe. If HHS hasnt released the new regs by end of year (as has been promised!!!) then its time for us to kick some b*tt in DC!!
Comment by David NYC — October 22, 2009 @ 8:33 pm
Thanks David..Let’s hope the best of it is coming soon.
Comment by Abe — October 22, 2009 @ 8:58 pm
I came across this article:
On October 22nd, the Department of Health and Human Services (HHS) sent this regulation change to the Office of Management and Budget (OMB). OMB now has 60 days to clear the rule for publication.
This is a big step forward! Thanks to all who have worked so hard in getting this unjust policy regulation reversed.
Title: Medical Examination of Aliens: Removal of HIV Infection as a Communicable Disease of Public Health Significance
Abstract: Under the authority of section 212(a)(1)(A) of the Immigration and Nationality Act (INA) and section 325 of the Public Health Service Act, the Secretary of Health and Human Services promulgates regulations outlining the requirements for the medical examination of aliens and a list of any “communicable disease of public health significance” that make aliens ineligible for entry into the United States. HIV is currently included in this list of communicable diseases as defined in 42 CFR part 34: Medical Examination of Aliens. CDC is proposing to remove HIV as a “communicable disease of public health significance” in 42 CFR part 34.2(b). This action aligns with an amendment in the United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, signed on July 30, 2008, that removed language in the Immigration and Nationality Act that explicitly prohibited HIV-positive non-citizens from entering the United States without a visa waiver.
Agency: Department of Health and Human Services(HHS)
Priority: Economically Significant
RIN Status: Previously published in the Unified Agenda
Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Yes
Unfunded Mandates: No
CFR Citation: 42 CFR 34 (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 42 USC 252; 8 USC 1182; 8 USC 1222
Regulatory Flexibility Analysis Required: Undetermined
Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: No
RIN Data Printed in the FR: No
Agency Contact:
Stacy Howard
Department of Health and Human Services
Centers for Disease Control and Prevention
CLFT Building 16, Room 4324, MS E03,
Atlanta, GA 30329
Phone:404 718-1056
Comment by Stefan — October 27, 2009 @ 6:30 am
Great news:
http://andrewsullivan.theatlantic.com/the_daily_dish/2009/10/hiv-travel-ban-update.html
I’m not sure where Sullivan got it from, but he’s pretty reliable (he’s directly affected by it after all). So it does look like this’ll all be over before year’s end.
Comment by Scooby — October 27, 2009 @ 10:54 am
Yes, It’s in the final rule making stage forwarded to OMB on Oct 22 for review
http://www.reginfo.gov/public/do/eoPackageMain
select Department of Human Health Services
Comment by Charlie — October 27, 2009 @ 6:26 pm
I hope they can speed up the process ASAP
Comment by Kim — October 28, 2009 @ 10:51 pm
EB3 has been retrogressed significantly. Are any of you on EB3? Hopefully the hiv ban is lifted as soon as possible. Wonder if IE has any inside scoop of the final regulation. Hopefully nothing has changed…
Comment by Norman — October 30, 2009 @ 12:09 am
I’m on EB3 with a priority date of April 04. I had the opportunity to file a couple years ago but didn’t when I learned I was HIV+. I’m happy the law is about to change, but I’m not sure when I’ll get to file for status adjustment. Fortunately the company I work for is very stable and is actually doing good even in these times.
But let’s face it; immigration reform is also needed. This process is ludicrous beyond belief.
Comment by Scooby — October 30, 2009 @ 7:39 am