HIV+ and Departing U.S. for Immigrant Visa Interview? Long Delays Likely Before Return

How medical exam creates extra barriers for HIV-positive green card applicants going through consular processing.

As reported in the Vice article “HIV-Positive Immigrants Get Stranded Abroad Without Meds,” by Serena Solomon, applicants for a green card who must complete consular processing in their home countries are hitting a stumbling block in the form of the medical examinations they must pass. (The medical exam is a basic part of the green card application, to ensure that the immigrant does not pose a health threat to the U.S population.)

Somewhat confusingly, it's not their HIV-positive status that's the problem. Although once a ground of inadmissibility to the U.S., HIV and AIDS have been removed from the list.

The problem is that one of the required tests on the standard medical exam is for tuberculosis; and the usual skin or blood test isn't considered adequate for people with HIV. They are instead being required to take a sputum test, in which a small amount of mucus from within their lungs is examined for the TB bacteria.

And then the real problem arises: The results of the sputum test can take up to three months to process. In the meantime, immigrants are having trouble getting enough antiretroviral medication out of their insurance company to last them that long; and may have trouble obtaining the needed medications in their home countries. (The article focused on the particular problems faced by citizens of Mexico.)

What can you do if you're facing such a concern? In immigration law terms (leaving aside the possibilities for coordinating with your doctor), the first thing to check into is whether you're eligible to do all your green card processing in the U.S., via the process called “Adjustment of Status.” Unfortunately, if you entered the U.S. illegally, the answer is likely to be “no.” See Who Can Apply for a Green Card Through Adjustment of Status for more on this, and consult an immigration attorney for a full personal analysis.

As a side note, the article oversimplified when it said, “applicants who are not here legally must leave the country to 'reset' their immigration status, according to immigration attorneys.”

First off, someone who is in the U.S. illegally after a visa overstay rather than an illegal entry might, in fact, be able to adjust status, particularly if applying for a green card based on an immediate relative such as a U.S. citizen spouse. See When Adjustment of Status Is Possible for the Immigrant Spouse of a U.S. Citizen.

Second, we're not talking about a mere “reset,” but a possible ten years of being stuck outside the U.S. and inadmissible. That’s because people who have spent 180 days or more in the U.S. unlawfully are, upon departure from the U.S., subject to a time a bar upon their return. It's either three or ten years, depending on the length of their unlawful stay. See Consequences of Unlawful Presence in the U.S.: Three- and Ten-Year Time Bars. A waiver is available based on extreme hardship to qualifying family members, and can now be applied for before leaving the U.S., but not everyone will qualify for this waiver. If access to medication could be a problem for you, this is a key issue to look into before departing.

If you seem to have no option but to leave the U.S. and seek consular processing, definitely speak with an experienced immigration attorney. You need to see whether you face a time bar for unlawful presence, and strategize around the medical-exam delay issue. You might also be able to do what one applicant described in the Vice article did, and obtain temporary U.S. entry through what's called “humanitarian parole,” in order to return to the U.S. to receive medical care.