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HIV-Based Immigration Applications

On January 4, 2010, the Department of Health and Human Services (HHS) final regulations went into effect, removing HIV from its list of “communicable diseases of public health significance” and removing the HIV test from the routine medical exam for lawful permanent resident applicants.   If you are unsure of how the change in the law will affect your case, please call or email our office.

Do the new regulations ending the HIV ban have any effect on my HIV-based application for asylum or hardship-based application?

No.  An HIV-positive individual seeking asylum on that basis, is applying because he or she fears persecution in his or her country of origin based on being HIV-positive.  The fact that the U.S. has now ended its own discriminatory immigration policy towards people with HIV is not relevant to whether or not an applicant will face persecution or hardship in his or her country of origin.

In 1996 INS issued a memo describing circumstances under which people living with HIV might qualify for asylum relief.

Is it possible to get a “green card” based on the hardship I would face if I had to go back to my country because of my HIV-positive status?

Prior to changes in the immigration law in 1996, it was possible for undocumented foreign nationals who had been in the U.S. for long periods of time and could prove extreme hardship if they would be deported to obtain legal permanent residence through “suspension of deportation.” That form of relief no longer exists.  It was replaced by “cancellation of removal” which allows certain undocumented foreign nationals to obtain legal permanent residence, but only if they can show extreme and exceptionally unusual hardship to their United States citizen or legal permanent resident immediate relatives; hardship to self is no longer recognized as a ground to gain legal permanent residence.

Is it possible to apply for asylum based on being HIV-positive?

While the Board of Immigration Appeals has held that persecution because of sexual orientation can be a ground for asylum, there is no similar decision by an appeals court requiring asylum officers or immigration judges to consider HIV-related persecution as a basis for asylum.  Nevertheless, there have been a few cases where individuals have been granted asylum solely because of their HIV status.  In general to win asylum an individual must prove “persecution” not “hardship” so in most cases it would not be sufficient to show that HIV medication would not be available because the home country is economically under-developed.  There have been many asylum cases granted where the applicant makes a claim based both on being gay and being HIV-positive.

To learn more please read the article on HIV-based asylum applications.

I have full-blown AIDS and believe that if I am returned to my country where there is no treatment available, I will not live very long.  Is there any humanitarian basis for me to stay in the U.S. and receive treatment?

In very limited circumstances, the Department of Homeland Security (DHS) can grant “deferred action” status meaning that it gives permission for a foreign national to remain in the U.S. temporarily because of an extremely compelling humanitarian circumstance such as a late stage terminal illness.  Practices vary widely from one jurisdiction (geographic area) to another, and it has become even more difficult to obtain this limited relief after September 11.