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Home > Issues > HIV Issues > HIV Waivers
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On January 4, 2010, the Department of Health and Human Services (HHS) final regulations removing HIV from its list of "communicable diseases of public healthsignificance" went into effect. As a result, THERE IS NO LONGER A NEED FOR ANYONE TO FILE AN HIV WAIVER. THE INFORMATION BELOW IS PROVIDED FOR HISTORICAL PURPOSES ONLY.
Has the HIV Ban been lifted? If I’m HIV-positive can I get my green card?
As of January 4, 2010, the HIV ban has been lifted, meaning that visa applicants will no longer be questioned about their HIV status and lawful permanent resident applicants will no longer be tested for HIV. This also means that neither visitors nor green card applicants have to submit an HIV waiver anymore.
If you have an HIV waiver pending, you should write to USCIS to remind them that the HIV ban has been lifted and that the agency should adjudicate your green card application.
Under the old law, who qualified to apply for a waiver to the HIV ground of inadmissibility?
To qualify to apply for an HIV waiver, an applicant had to 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
Were there categories of HIV-positive foreign nationals who could not get a “green card” unless they had a qualifying relative to make them eligible to apply for the HIV waiver?
Yes, unfortunately there were several categories of applications for legal permanent residence which do not allow HIV-positive foreign nationals to obtain legal permanent residence unless the applicant also happened to have a qualifying relative. Although this list does not include all categories, some of the most common categories included:
- Labor certification and other employment-based applications for legal permanent residence;
- Diversity Visa lottery winners;
- NACARA and HRIFA applicants;
- Adult married children of U.S. citizens; and
- Brothers and sisters of U.S. citizens.
What were the other requirements to be granted a waiver?
In addition to having a qualifying relative, an applicant to an HIV waiver also had to:
- Demonstrate, that the danger to the public health of the United States created by his or her admission was minimal;
- Demonstrate that the possibility that the spread of the infection created by his or her admission to the United States was minimal; and
- Prove that there would be no cost incurred by any level of government agency of the United States without prior consent of that agency.
What if an applicant didn’t have the qualifying relative?
Unfortunately, unless an applicant fellsinto one of the few categories of legal permanent resident applicants which did not require a qualifying relative – refugees, asylees, and applicants under the Violence Against Women Act (VAWA, meaning applicants who have been battered by their United States citizen or legal permanent resident spouse) – the application for legal permanent residence was denied. This was true even for applicants who had excellent jobs and private health insurance.
How would an applicant apply for an HIV waiver?
The waiver form was the I-601 Waiver Application which is the same one used for several other waiver applications. Asyless and refugees would use form I-602.
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