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HIV Inadmissibility, Waivers and Advocacy
by Cyrus D. Mehta

      This article discusses the HIV ground of inadmissibility and explains how one can obtain a waiver. Advocacy efforts to broaden the waiver to accommodate those who cannot qualify will also be discussed.

     Section 212(a)(1)(A)(I) of the Immigration and Nationality Act (INA) renders inadmissible any applicant for a visa or admission who is found, according to the regulations published by the Secretary of Health and Human Services (HHS), to have a communicable disease of public health significance.

    HIV infection is considered a communicable disease of public health significance.

     One could be barred under the HIV ground of inadmissibility whether an individual applies for a nonimmigrant (temporary) visa or an immigrant visa (green card).

     If an individual is eligible for either a temporary visa or a green card, but would be denied solely because of HIV infection, a waiver is available.

A.  NONIMMIGRANT VISA WAIVER

     The INS has implement two specific waiver policies for applicant seeking admission as nonimmigrants, for a temporary period of time, who are inadmissible due to HIV infection.

Routine HIV Waiver Policy

     Nonimmigrants may be granted a waiver for admission to the U.S. for 30 days or less to attend conferences, receive medical treatment, visit close family members, or conduct business. The applicant must demonstrate that he or she is not currently afflicted with symptoms of the disease; there are sufficient assets, such as insurance, that would cover any medical care that might be required in the event of illness while in the U.S.; the proposed visit to the U.S. is for 30 days or less; and that the visit will not pose a danger to public health in the U.S.

The "Designated Event" Policy

     This policy facilities the admission of HIV-positive persons to attend certain "designated events," which are considered to be in the public interest, such as academic and educational conferences and international sports events. To initiate the process, Health and Human Services (HHS) writes a letter to the Department of State (DOS) regarding a specific event. DOS recommends the event to the Attorney General, who "designates" the event and authorizes a blanket waiver. This blanket waiver allows HIV-positive applicants – seeking admission to the U.S. specifically to participate in the "designated event" – to be admitted for the duration of the event without being questioned about their HIV status.

      For instance, the INS recently announced a waiver for persons infected with HIV who will be participating in the UN General Assembly Special Session on HIV/AIDS in New York from June 25 through 27, 2001. Those participating in the preparatory meetings on May 21 through 25, 2001, will also be able to obtain the special waiver.1

      The only disadvantage in obtaining a "designated event" waiver is that it only applies for that specific event. A person already issued a "designated event" waiver will have to apply under the routine HIV waiver policy when seeking future admissions into the U.S.

B. IMMIGRANT VISA WAIVER

      Applicants seeking admission to the U.S. as immigrants for a green card must establish the required immediate family relationship. They must be the spouse or unmarried son or daughter, or a minor unmarried adopted child of a United States citizen or permanent resident, or have a son or daughter who is a United States citizen or permanent resident.2

     If the applicant meets the required family relationship, then he or she must prepare Form I-601, along with the HIV supplement. The following supporting documents need to be provided with the I-601, in support of the waiver application:

  1. A letter from the HIV-positive applicant’s physician (who signed the I-601 "HIV Supplement") indicating that the applicant is under his/her care for treatment of the disease, and in his/her opinion the applicant poses no public health threat. The letter should also indicate that the applicant has been counseled on how the disease is spread.
  2. Proof of relationship to the "immediate family member."
  3. Proof that the "immediate family member" is in fact a green card holder or U.S. citizen.
  4. Proof that the applicant has private health insurance.
  5. Proof that applicant will not become a public charge.
  6. If the HIV positive applicant has ever received ADAP or any other State or Federal subsidy (public assistance), she/he must be able to prove that she/he is no longer receiving any sort of public assistance.

     Under INA § 209(c), asylees or refugees with HIV who are adjusting to green card status do not need to establish the qualifying family relationship. However, they still need to go through the same steps by using Form I-602.

     The intending immigrant must submit the waiver packet at the time of the adjustment of status interview or when applying for immigrant visa at an overseas consulate. Once the waiver is filed with the INS or with a counselor officer, it is sent to the Center for Disease Control (CDC). The CDC reviews the form for completeness and may check professional directories to insure that the treating physician is genuine. The CDC then opens a file under the applicant’s name and sends it back to the INS Office or consular post with a form letter requesting that it be advised when the person is adjusted to permanent residency. Once the application is returned by the CDC to the INS, the INS examiner or consular officer should then schedule the alien for "passport stamping."

     Although the law provides for a waiver, many may not qualify for it or will find it extremely difficult to obtain one. For instance, not everybody has the required immediate family relationship. This is particularly true with same sex partners who are unable to establish a legally cognizable marriage under the INA. They are also less likely to have other close family members in the U.S. as they may have come to the U.S. to escape being shunned or estranged by these very family member in their own countries.

      Even if the qualified family relationship can be established, it may be extremely difficult and expensive for an applicant to obtain private health insurance. Indeed, applicants have reported to this writer that a private insurance company will not insure someone who is living overseas and is applying for the green card at a U.S. consular post3. For an applicant outside the U.S., it will also be difficult to obtain a letter from a medical doctor indicating that he or she is under treatment and poses no health threat. The way out of this is for the doctor to state that once admitted into the U.S., the immigrant will be under the medical doctor’s care for the treatment for the disease and will be counseled so that he or she will be not pose a public health threat.

      Even if the applicant is able to obtain insurance, he or she must still overcome the public charge ground of inadmissibility. The applicant with HIV must be able to show that he or she is working or will work or has an affidavit of support submitted on his or her behalf. If the applicant has ever received ADAP or any other state or federal subsidiary, it is important that the applicant should not be receiving such public assistance at the time of the interview.

C. ADVOCACY EFFORTS

     Although it is difficult to obtain a waiver, applicants should not be deterred from applying if they qualify under all of the above mentioned grounds. Those who are unable to qualify because of the lack of a family relationship, should effectively advocate for an amendment in the law.

     There seems to be no rational basis for preventing someone from obtaining a waiver due to the lack of a family relationship. If such an individual can establish that he or she will receive medical assistance and will not burden the state, these should be sufficient grounds for obtaining an HIV waiver. It is, therefore, unfair to require people to have the immediate family relationship.4

      Alternatively, if a family relationship is so important to immigration policymakers, the waiver provision should be broadened to allow brothers, sisters or even same sex partners.

     Indeed, legislation has been proposed by Congressman Jerrold Nadler (D-NY) known as the Permanent Partners Immigration Act (PPIA). The PPIA establishes the concept of a "permanent partner" in addition to the usual family members under the INA – spouse, child, parent – who can sponsor relatives or provide the basis for HIV and other waivers.

     The PPIA defines a "permanent partner" as an individual over 18 years of age who is in a committed, intimate relationship with another unmarried individual over 18 years of age in which both parties intend a lifelong commitment; is financially interdependent with that other individual; is not married to or in a permanent partnership with anyone other than that individual; and is unable to contract with that other individual a marriage cognizable under the INA; and is not a first, second or third blood relation of that other individual.

      Such a "permanent partner" under the PPIA would not only serve as the qualifying immediate family relationship for an HIV waiver, but would also be able to sponsor a foreign national individual in the same way as a citizen or green card holder spouse would.

      As several other countries have recognized the ability of a same sex partner to sponsor someone for immigration benefits, it is high time that the U.S. adopt more progressive laws that would make it easier for persons infected with HIV to obtain waivers.5 While the PPIA has a long way to go before it becomes law, over 70 Congresspersons have indicated that they will support this legislation. Only effective and persistent advocacy will ensure that the PPIA some day gets a majority of votes in Congress.


1People seeking admission under the Visa Waiver Program will not be able to get the "UNGASS" waiver at the airport. Such people would have to first seek a visa at a U.S. consular post and apply for the UNGASS waiver.
2INA Section 212(g)(1).
3
In such a situation, the immediate or sponsoring relative may want to include the applicant as a dependent on his or her own insurance.
4
Under INA § 209(c), asylees or refugees with HIV who are adjusting to green card status do not need to establish the qualifying family relationship.
5Currently, fourteen countries have immigration laws to allow same-sex sponsorship: Australia, Belgium, Canada, Denmark, Finland, France, Iceland, Israel, the Netherlands, Norway, South Africa, Sweden, New Zealand, and the United Kingdom.

 


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or info@cyrusmehta.com.


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