|
Home > Issues > HIV Issues > The HIV Ban
On January 4, 2010, the rule ending the HIV immigration and travel ban went into effect. After two decades of discrimination and stigma, the HIV ban on travel and immigration is history!
Before calling Immigration Equality’s New York office, please read the following Frequently Asked Questions.
I’m HIV-positive, and I have been waiting for years to file for lawful permanent residence. Does this announcement mean I can now apply for a green card?
HIV is no longer a bar to applying for permanent residence. That being said, whether you are HIV-positive or not, you still must qualify for a green card through a family sponsorship, employer sponsor, the Diversity Visa lottery, asylum, or some other means to apply.
Unfortunately, for many undocumented HIV-positive individuals, the biggest obstacle to obtaining a green card is that they are living in the United States without lawful status, not their HIV positive status.
Do the new regulations mean that I don’t have to qualify for an HIV-waiver if I apply for a green card?
Now that being HIV-positive is no longer a reason to deny someone lawful permanent residence, there is no need to file a waiver.
I have a waiver pending, what do I do?
Now that the regulations have been issued, you or your attorney should send a letter to USCIS explaining that the HIV ban has been lifted, that a waiver is no longer required in your case, and that they should adjudicate your green card application immediately.
Can I get a refund for the $545 waiver fee I already filed?
Unfortunately, no. Immigration law changes all the time, but they don’t refund fees that were appropriately paid at the time an application (or waiver) was filed.
My case was denied because I’m HIV-positive, can I reopen it?
Maybe. Sorting through which cases can be reopened will be one of the most difficult legal aspects of the end of the HIV ban. In general, you will probably still need to qualify for the benefit that was denied. For example, if you won the Diversity Visa lottery in 2006 but couldn’t go forward with the legal permanent residence application because of your HIV status, you will not be able to do so now because 2006 DV visas are no longer available.
If your application was denied in the past because of your HIV status, you should contact our legal department to determine what, if anything, can be done.
If I'm applying for a green card now, will I be tested for HIV?
No, part of the change in the law was removing HIV testing as part of the medical examination for lawful permanent resident applicants.
Does this mean that HIV status is completely irrelevant to my immigration case?
No. All applicants for lawful permanent residence must demonstrate that they are not “likely to become a public charge.” If you are in relatively good health, being HIV-positive should not be an obstacle to getting a green card. However, in determining whether someone is likely to become a public charge, USCIS can look at all of the circumstances of someone’s life. If you have been in a nursing home or have been too disabled by your HIV to work, it is possible that your application could be denied if USCIS finds that you will not be able to support yourself.
However, since the new regulations remove HIV testing from the medical examination, it is unlikely that your HIV status will come up at all.
I applied for asylum based on being HIV positive, will this change in the regulations affect my application?
It shouldn’t. To succeed in an application for asylum, people must prove that they have a well-founded fear of persecution based on being HIV-positive. The fact that the U.S. will soon end its discriminatory policy toward foreign nationals with HIV is not relevant to whether an asylum seeker would face persecution in his country of origin. There is further information on asylum based on HIV and asylum generally on our Web site.
Will I be able to obtain a visa to come to the United States for a visit?
Maybe. The new regulations no longer prevent an HIV-positive person from obtaining a visa. However, as with a permanent residence application, you would still have to show that you qualify for a visa before it will be issued to you. For example, if you are seeking to come to the United States as a tourist or a visitor, you must always prove that you intend to return to your country at the conclusion of your authorized stay in the U.S. If you cannot demonstrate an intent to return home, it is unlikely that you will be issued a visa.
|
