Visa Lawyer Blog
There has been a lot of confusion about the impact of the HIV removal on previous waiver denials and other related issues. USCIS released a good set of FAQ to address some concerns.
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), bars the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. The Department of Health and Human Services (HHS), on Nov. 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule takes effect on Jan 4, 2010. As of Jan. 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States.
Here are the most common questions asked:
Q. My application was denied prior to Sept. 15, 2009, due to failure to file a waiver for HIV infection. Can I file a motion to reopen or reconsider because a waiver is no longer needed?
A. In general, a motion to reopen or reconsider must be filed within 30 days of the final adjudication. However, if your application was denied solely based on HIV infection, on or after July 2, 2009, the date of the proposed HHS rule, USCIS will waive the 30 day deadline. USCIS will accept the filing of your motion to reopen or reconsider along with the filing fee.
Q. My application for adjustment of status was denied prior to July 2, 2009, due solely to HIV infection. What should I do?
A. You may reapply for adjustment of status, if eligible, once the new rule takes effect on Jan. 4, 2010. USCIS will make a new decision in light of the final HHS rule.
So this is a bright light in the lives of many HIV positive immigrants, facing the possibility of removal. We hope to report more on the above referenced changes.