Human Immunodeficiency Virus (HIV) and U.S. Immigration

Challenges HIV+ foreign nationals face when seeking to enter or live in the United States, and how to potentially overcome them.

By , Attorney · University of Arizona College of Law

For some years in the past, an intending U.S. immigrant who tested positive for the human immunodeficiency virus (HIV) was excluded from U.S. entry—legally inadmissible. Anyone who wanted to obtain a U.S. green card or visa and who was HIV positive had to first obtain a waiver and prove that they did not present a public safety threat. Although HIV was removed from the list of inadmissibility grounds in 2010, HIV positive applicants still face possible immigration challenges, especially when applying for a U.S. green card (lawful permanent residence) as opposed to a visa for a shorter stay.

This article will discuss the challenges HIV+ foreign nationals face when seeking to enter or live in the United States, and how to potentially overcome them.

HIV-Positive Applicants Might Be Delayed Due to Enhanced TB Screening

The Centers for Disease Control (CDC) instructions to its civil surgeons (who perform medical exams for would-be immigrants) could delay, if not completely derail, some HIV-positive applicants' request for a visa to the United States. Tuberculosis screening requirements require that anyone known to be HIV positive undergo not just a regular TB screening (a chest x-ray and possibly a blood test), but referral to a health department for a more sensitive test known as a sputum culture.

This is because CDC determined that even if an HIV positive person has a chest x-ray and blood test that are negative for TB, it doesn't rule out the possibility that the person has TB. Therefore, regardless of these preliminary test results, if the physician knows the applicant is HIV positive, the physician must order a sputum culture. Unfortunately, these cultures take at least eight weeks to grow, and the results must then be analyzed and reported back to the examining physician.

The concern, obviously, is that applicants with compromised immune systems might be more likely to catch and carry tuberculosis and bring it to the U.S.; tuberculosis being a ground of inadmissibility, meaning that the person may not receive a U.S. visa or green card even if otherwise qualified for it.

Even though the medical exam form no longer specifically asks about applicants' HIV status, and HIV testing is no longer required, the CDC instructs panel physicians to assess each applicant's medical history by asking questions about prior illnesses and hospitalizations.

This can inevitably lead to a discussion regarding the applicant's HIV status. Additionally, if the physician suspects an applicant is HIV positive based on symptoms, the physician can recommend that the applicant undergo HIV testing, though the testing is not mandatory. Still, HIV positive individuals are subject to the more extensive TB screening if the physician knows the applicant is HIV positive, whether this is discovered through the applicant's voluntary disclosure or voluntary submission to testing.

This CDC policy has reportedly resulted in long delays, even when the applicant is ultimately found to be free of TB.

If the person has TB, the visa or green card may be denied, though a waiver is available. See Waivers of Health-Based Inadmissibility for U.S. Green Card Applicants for more about the criteria for receiving this waiver and the application process for requesting it.

HIV-Positive Applicants Might Need to Show Ability to Pay for Medical Care

Another issues is that, if the physician preparing the immigration-related report knows that an applicant is HIV positive, or the applicant exhibits symptoms of HIV which need ongoing medical attention, the physician will report the finding as a "Class B" medical condition.

A Class B condition does not automatically result in visa ineligibility, but the consular officer is still permitted to consider whether the condition will affect the applicant's ability to work or whether an applicant is likely to need long-term residential care, like in a nursing home.

If so, the applicant might be asked to provide proof that the applicant will have health insurance in the United States or that the applicant or applicant's family can cover the costs of future medical expenses. This policy applies to all medical conditions, not just HIV.

Getting Legal Help

For personalized assistance with applying for a U.S. visa or lawful permanent residence, consult an experienced attorney. The attorney can help prepare the paperwork, create a convincing argument for a waiver of inadmissibility if needed, and monitor the case through any delays or difficulties.

Talk to an Immigration attorney.
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