Contributors

Introduction

Changes to US Government

Rights of Noncitizens

Basic Rules of Working with Noncitizens Living with HIV/AIDS

Learning the System: Basic Immigration Concepts

Part One: Understanding Your Client's Immigration Status

Part Two: Understanding the Impact of HIV on Immigration Status

Part Three: Gaining Legal Immigration Status and Becoming a US Citizen

Basic Rules of Working with Noncitizens Living with HIV/AIDS

Treat noncitizen, HIV positive clients like you would any other client. Get them the services they need. Assure them that everything they tell you will be kept confidential and that you will not call the Department of Homeland Security. The difference: Be aware that being a noncitizen may make it risky for them to get services and do things that a US citizen can do without risk.

Cultural barriers may make it harder to help noncitizens. Noncitizen clients may not feel comfortable discussing HIV or sexual orientation with anyone, let alone a stranger. Explore ways to ask questions about HIV or sexual orientation that allow clients to be more open and trusting. Some advocates may be homophobic or fear people with HIV/AIDS. Make sure the immigration advocates working with your clients are comfortable dealing with HIV/AIDS and sexual orientation or transgender issues. Clients may not realize you will not turn them over to DHS. Assure your clients that you do not work for DHS and will keep everything they tell you confidential. Clients may not be able to communicate their fears or concerns in English. Interview them in a language they speak fluently, using an interpreter who is not related to them. Ask them whether they have explored all routes to immigration status, including asylum petitions based on persecution because of HIV status or sexual orientation.

Never tell clients to go to the Department of Homeland Security by themselves. No one should speak to DHS or go to DHS before talking to an immigration law expert. If noncitizens go to DHS by themselves, DHS may arrest them and remove them from the United States before they have the chance to talk to a lawyer.

Noncitizens with HIV should not contact DHS without first discussing their options with an immigration advocate.

Inform clients that DHS may arrest and detain them. Although it is unlikely that DHS will make arresting HIV positive noncitizens a high priority, it will remove noncitizens if they entered the country without permission. DHS may also try to deny returning noncitizens with legal status from reentering the United States if the agent suspects the noncitizens are HIV positive. Tell your client to be prepared.

Work with local immigration advocates. Although this manual will give you some basic information about immigration status and HIV, you should only use this information to explore your clients' options. Do not tell your clients you know what their immigration status is or how they can change that status. The consequences of providing inaccurate advice can be severe. The severe consequences of the immigration law mean it is very important that you establish a working relationship with a local immigrants' rights agency or practitioner. Your noncitizen clients always should carry with them the name and telephone number of an immigration advocate or agency that they can call from DHS detention.

Many immigration advocates do not know how HIV can affect immigration status and may never have had a client with HIV. They may lack sensitivity to clients with HIV and be unaware of all the options available to noncitizens with HIV. After reading this manual, you may know more than local immigration advocates about HIV and immigration. Share this manual with the immigration advocates you consult. If you do not know immigration advocates in your area who are sensitive to HIV/AIDS issues and know the options for noncitizens with HIV, call the National Immigration Project of the National Lawyers Guild (see resources). Be aware that some fraudulent immigration practitioners prey on the hopes and desperation of noncitizens.

Tell noncitizens to talk to an immigration expert before they leave the United States. Anyone who is not a US citizen may be prevented from coming back into the United States if a DHS border official suspects he or she has HIV. This includes some lawful permanent residents (people with "green cards") and applicants for lawful permanent residence who go abroad to pick up their visas. Some noncitizens - whether or not they are HIV positive - who have been in the United States without Government permission also may be permanently barred from reentering or gaining legal status in the United States. See Travelers with HIV for more information.

Inform all noncitizens that they should never falsely claim to be a US citizen. False claims to US citizenship can lead to a variety of problems, including deportation or removal, the inability to ever legalize one's status, or even prosecution. If you or your client believes that he or she has already made a false claim to US citizenship, consult an immigration legal advocate. There is one extremely limited exception for children of citizens who were lawful permanent residents and reasonably believed that they also were citizens at the time they claimed to be a citizen. There may also be other considerations that would help your client.

Every noncitizen should get counseling on HIV that assures confidentiality or anonymity or both. Before undergoing a DHS medical examination, a noncitizen should get tested at a local clinic. Most testing centers will ensure results are confidential, meaning they will share them only with the person taking the test. Despite this assurance, however, some states require doctors and medical practitioners to turn over the names of people who test positive for HIV or those with an AIDS diagnosis to state or federal agencies. If this occurs in your state, noncitizens should only take tests anonymously. Call the National AIDS Hotline (1-800-342-2437) or contact a local AIDS office or health department to find out where your client can get an anonymous or confidential HIV antibody test.

Work to ensure noncitizens get necessary public benefits. Under the 1996 federal welfare reform law, state and local governments decide who receives many public assistance benefits. Work with other state advocates to ensure state and local public assistance is available to all your noncitizen clients, regardless of immigration status. Since Congress eliminated numerous forms of federal public assistance for noncitizens, this local support becomes vital, both for individual clients and for public health concerns in general. Your efforts to convince state and local governments that noncitizens should receive public assistance are crucial.

Be aware that some people administering public benefits hold racist, homophobic, and/or anti-immigrant ideas and stereotypes. Before sending noncitizens to another agency, including an HIV/AIDS agency, find out that agency's policies on reporting people to DHS. Ask them if they believe they can help noncitizens and if they feel they must report undocumented immigrants to DHS. Although many local benefits administrators are not required to report people they suspect are undocumented to DHS, many may believe think they are. Moreover, unsympathetic service providers may call DHS if they suspect a noncitizen is undocumented or HIV positive or has AIDS. Sympathetic benefits providers, in contrast, may wish to help challenge the legality, morality, and practicality of reporting applicants to DHS. It is unlikely noncitizens in the United States will be removed for being HIV positive, but they could end up in immigration court if DHS learns of their HIV status. Make sure you do not refer clients to service providers who will report them to DHS. The best you can do for your clients is to help them understand their choices, and provide them with whatever support you can find.

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