<  Legal Help

People Living with HIV

One of Immigration Equality’s core principles is to ensure that U.S. immigration law does not discriminate or stigmatize people living with HIV. At the same time, we are often successful in securing asylum for people living with HIV who fear persecution on that basis. Anyone thinking about applying for asylum based on HIV status should review our asylum materials carefully and also consult with an experienced immigration attorney. 

Asylum Based on HIV-Status

In some countries it is dangerous to be a person living with HIV. While the Board of Immigration Appeals has confirmed that persecution because of sexual orientation is a reason someone might be granted asylum, there is no similar decision by an appeals court overtly acknowledging HIV-related persecution as a basis for asylum. Nevertheless, there have been many 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,” and so in most cases it would not be sufficient to show that HIV medication would not be available because their country or origin cannot afford medicine. To learn more please read this article on HIV-based asylum applications.  Also, in 1996 INS issued a memo describing circumstances under which people living with HIV might qualify for asylum. Finally, the asylum officer’s basic training manual notes that an asylum claim “may” be a basis for protection. For more information on the asylum process, please see our section on asylum.

Persons living with HIV who fear mistreatment because of HIV-related stigma in their country of origin should consult with an experienced immigration attorney.

Family-based Immigration

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. Additionally, while applying for lawful permanent residence, use of some benefits such as the AIDS Drug Assistance Program did not historically count against an applicant when the government makes a determination on whether a person will likely be a public charge . However, regulations issued in 2020 may have changed that. For more information, see this update.

People Living with HIV in Immigration Detention

Conditions for people living with HIV in ICE or CBP detention are deplorable. Detention facilities often deny or delay HIV medications, give incorrect dosage of HIV medications, or do not allow someone to refill their HIV medications. In fact, in 2019, ICE separated a man living with HIV from his children because the officers thought that he might accidentally transmit the illness to them. For information on conditions in detention and recourses, please see our resources on detention.

Other HIV-based Immigration

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 lawful permanent residence through “suspension of deportation.” That immigration benefit no longer exists. It was replaced by “cancellation of removal” which allows certain undocumented foreign nationals to obtain lawful permanent residence, but only if they can show extreme and exceptionally unusual hardship to their United States citizen or lawful permanent resident immediate relatives. Hardship to one’s self is no longer recognized as a ground to gain lawful permanent residence.

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. (Note that this form of “deferred action” is distinct from Deferred Action for Childhood Arrivals, (DACA,) which is available to certain individuals who arrived in the United States as children and who meet other eligibility requirements.) An individual living with HIV who fears that they would not live very long if they are returned to their country of origin due to lack of availability of treatment, may consider applying for deferred action. It should be noted that deferred action is a discretionary relief and is granted on a case-by-case basis. Most applications are denied. Anyone considering a deferred action application should consult with a qualified immigration attorney before doing so.

Applicants lacking valid immigration status who apply for deferred action run a real risk that their requests will be denied, and that Immigration and Customs Enforcement will take steps to remove them from the United States.

Historical Summary – HIV Ban Was Lifted

From 1993 until January 4, 2010, HIV was considered a ground of inadmissibility, meaning that HIV-positive foreign nationals could be denied short-term visas or applications for lawful permanent residence simply because of their HIV status. Fortunately, with the help of Immigration Equality and our coalition partners, that discriminatory law came to an end in the beginning of 2010.

On January 4, 2010, the HIV ban on travel and immigration, which had been in place for two decades finally came to an end. With the end of the HIV ban, being HIV positive is no longer an automatic ground of “inadmissibility.” For foreign nationals seeking to enter as tourists or short-term visitors, being positive should not be an issue at all. For lawful permanent resident applicants, being HIV-positive could still affect USCIS’s determination about whether someone is “likely to become a public charge.” While doctors will no longer perform an HIV antibody test as part of the medical examination, the doctor could ask questions about overall health which could lead the doctor to conclude that someone is HIV positive. While it is not necessary to volunteer information about HIV status, always be honest with the doctor performing the medical exam.  In addition, immigration and consular officials are permitted to take health into account when determining whether an applicant is likely to need government assistance, which can be a ground for denying a green card application. 

Historical Information and Links to Important Documents

After a 60 day waiting period, the final regulations which were published by the Department of Health and Human Services on November 2, 2009, became law. The regulations removed HIV from the list of “communicable diseases of public health significance,” meaning that anyone seeking to enter the U.S. as a visitor can do so without having to disclose their HIV status. The regulations also remove the HIV testing requirement for lawful permanent resident applicants.

As the lengthy bureaucratic process of publishing the regulations and issuing guidance on their implementation unfolded, there were several significant memoranda be issued by various U.S. government agencies about the end of the ban. The United States Citizenship and Immigration Services issued two memos about implementation of the end of the ban. On September 15, 2009 USCIS issued a memo which provided guidance on adjudicating cases before the January 4, 2010 change in the law. Specifically, the memo instructed officers not to deny cases based solely on a person’s HIV-positive status, but rather to hold them in abeyance until the change in the law.

On November 24, 2009, USCIS issued further guidance to its officers on adjudicating cases after January 4, 2010. Namely, the memo reiterates that HIV will no longer be a ground of inadmissibility, that waivers for individuals with HIV will no longer be required, that HIV anti-body testing will no longer be a part of the medical exam for lawful permanent resident applicants. It also provided that upon a motion with the proper fee, applications that were denied solely because the applicant was HIV positive after July 2, 2009 (the date that the final regulations were published) may be reopened.

At long last, on December 17, 2009, the Department of State issued a Q and A explaining the end of the HIV ban. This is very important because individuals seeking visas abroad (either short-term or for permanent residence) must do so with U.S. consulates which are part of DoS, not USCIS. The guidance made it clear that after January 4, 2010, HIV was no longer a reason to deny visas. However, if any problems with a consulate arise, please contact Immigration Equality.

Also, the Centers for Disease Control issued a letter to all doctors who conduct immigration medical exams. USCIS has updated the I-693 form to eliminate the box for HIV testing. Some doctors, however, may test for HIV with an applicant’s consent. If a physician does test for HIV, or if an applicant discloses their HIV status, the physician may record the HIV status on the I-693.  It is important to note, however, that an indication or diagnoses of HIV, alone, will not affect visa or immigration applications.

The end of the HIV ban was the culmination of remarkably hard work by a broad coalition of immigration, HIV, LGBTQ, and human rights organizations. Together, we mobilized over 23,000 comments in favor of lifting the ban with fewer than 550 comments against lifting the ban. Significantly, over 400 organizations submitted or signed onto comments calling for an end to the ban and there were no organizational comments that asked HHS to keep the ban in place. Immigration Equality was among the organizations that submitted comments in full support of the proposed regulations.

None of this would have been possible without the leadership of Senators John Kerry and Gordon Smith and Congresswoman Barbara Lee, who led the fight in Congress in 2008 to remove the statutory HIV ban. 


The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

Visit
single-legal.php