I-601 Waiver Attorney – Final Days of the HIV Ban

This Update is from AILA Rome Chapter, very important information for HIV infected immigrants and family members.

This Post will attempt to lend clarity to the dynamic process by which HIV infection is being removed as a ground of inadmissibility under INA 212(a)(1). Although the date for final removal of HIV infection from the list of communicable diseases of public health significance is just a few weeks away, DHS and DOS are at very different stages in their attempts to align their respective regulations to this welcome new reality.

On July 2, 2009, the Department of Health and Human Services (HHS) published a Notice of Proposed Rulemaking in the Federal Register, announcing its intent to remove HIV infection from its list of communicable diseases of public health significance and inviting public comment on the issue. The Final Rule implementing this change was published on November 2, 2009; following a 60-day waiting period, the rule will become effective on January 4, 2010.

In a Memorandum dated November 24, 2009, USCIS amplified its previous guidance instructing adjudicators to hold in abeyance any cases they encounter in which the sole reason for denial would be HIV infection; USCIS will automatically reconsider these cases after the new rule takes effect on January 4, 2010. If, between now and January, an officer encounters a case in which a foreign national has already filed an approvable waiver of inadmissibility relating to HIV infection, then the case should be adjudicated as is. If an already-filed HIV waiver is not approvable, the adjudicator should delay action on the case until after January 4, at which point the inadmissibility will no longer exist.

Applicants whose cases were denied solely on HIV grounds on or after July 2, 2009, may file a motion for USCIS to reopen or reconsider the decisions. USCIS has waived the requirement that such motions be filed within 30 days of the original decision, but applicants must still submit the relevant filing fee. These cases will then be reconsidered within the new regulatory framework in effect after January 4, 2010.

As of January 4, 2010, USCIS adjudicators will disregard a diagnosis of HIV infection when processing cases. After this date, moreover, adjudicators will administratively close any waiver requests they encounter pertaining to HIV infection. Furthermore, HIV testing will cease to be part of the medical examination for immigration benefits.

Regrettably, the Department of State has so far publically released scant guidance detailing how consular officers, in light of the new rules, will treat immigrant and nonimmigrant cases involving HIV infection. Although the pertinent provisions at 9 FAM 40.11 were updated as recently as the end of October 2009, these provision still instruct consular officers, inter alia, to deny immigrant visas for applicants who are found to be HIV-positive.

Until we receive this guidance, a word to the wise: the elimination of HIV infection as a medical ineligibility does not rule out the possibility of an HIV-positive immigrant being found inadmissible as a potential public charge. A public charge finding may result in denial of permission to adjust to legal permanent resident status, denial of a visa to enter the United States, denial of re-admission to the United States after a trip abroad for more than six months, or, in very rare circumstances, deportation. Recent research suggests that public charge concerns, along with other “chilling effects” related to welfare reform and confusion about eligibility rules for benefits, have kept many legal immigrants from accessing benefits for which they are eligible.

As with other medical conditions, Affidavits of Support for profoundly sick individuals should be as strong as possible in order to overcome INA 212(a)(4).