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

Part One: Understanding Your Client's Immigration Status

Some noncitizens think they have a certain status when they do not; while others think they do not have status when they do. The first step in helping noncitizens with HIV is to find out their current immigration status. This may be a very personal question. You may wish to ask the following questions.

Is your client having any problems with DHS? If yes, does your client have a "final removal order"?
If the answer to either of these questions is yes, your client should see an immigration legal advocate immediately. Clients may have hearings scheduled with an immigration judge or have missed hearings. They may have a "final removal order." A final removal order is a written decision by an immigration judge, which is not on appeal, requiring a noncitizen to leave the US. An immigration judge can issue a final removal order in absentia, that is, without the noncitizen being present at the court hearing. Clients also may have interviews scheduled with a DHS officer. In any of these cases, they should get legal advice immediately since the result of the hearing or interview may be swift removal.

What immigration documents does your client have?
See Immigration Documents. Immigration documents should provide clues to your client's immigration status. Does your client have a birth certificate? Almost everyone born in the United States is a US citizen. Where were your client's parents and grandparents born? If any of them were born in the United States, or became a naturalized US citizen, it is possible your client is a US citizen or could easily become one, even if he or she was born outside the United States. Determining US citizenship is often a complicated process. If you think your client may be a US citizen, consult an immigration advocate who specializes in citizenship.

Did your client ever have documents?
Clients without documents are not necessarily undocumented. To decide if they are truly undocumented, ask them some questions. They may not want to talk to you about their status because they fear being turned over to DHS. Reassure them that anything they tell you is confidential and that you will not share this information with anyone.

Ask your client:

• How did you come in to the United States (by airplane, boat, walking or wading across the border)?
• Did you get a visa before you came into the United States?
• Did you talk to a government officer when you came in?
• Did you get any documents from the US government when you came in?
• Once you were in the United States, did you or anyone else apply to the US government for a status for you? If yes, what happened to that application?
• Has the US government ever stopped or arrested you in the United States?
• Have you ever had to go to immigration court?
• Have you ever left the United States after an immigration court hearing or after signing a government paper?

If it appears your client once had immigration documents, try to determine what happened to them. It may be possible to get replacements, though your client will probably need help from an immigration advocate to obtain copies.

Is your client undocumented?
Clients are probably undocumented if:

• They came into the United States without a visa, and
• They did not speak to a the US government official at the border, and
• No one has applied for status for them in the United States.

Noncitizens may be undocumented if they came in on visas but the visas are no longer valid. Visas may no longer be valid for several reasons:

• The time period has expired, and they did not get an extension on the deadline for leaving the United States, or
• They did something they were not allowed to do without government permission, such as work without a work permit, or
• They were indicted or convicted of violating a criminal law in the United States or have an outstanding warrant for an alleged crime.

Many undocumented noncitizens may be able to get legal immigration status.

Types of Immigration Status

The immigration system treats noncitizens differently depending on their status. Each status has different requirements and benefits. This list includes only the major categories of status likely to apply to a noncitizen. For more information on any of these kinds of status, contact National Immigration Project.

US Citizenship
An individual born in any of the fifty states in the United States, Washington, D.C., and certain US commonwealths, territories, and possessions are US citizens. This includes people born of undocumented parents. Children born abroad to US citizen parents also may be US citizens. Everyone else must "naturalize" to become a citizen, usually after a required period of lawful permanent residence.

US citizens cannot be removed unless a federal court takes away their citizenship because they obtained citizenship by fraud or other illegal means. They do not need DHS authorization to work, and they may file petitions for lawful permanent residence for their spouses, parents, sons and daughters (both married and unmarried), and brothers and sisters. Most US citizens will either have a birth certificate showing they were born in the United States or a certificate of naturalization.

Lawful Permanent Residence
Lawful permanent residents are noncitizens who make the United States their permanent home, have authorization to work in the United States, and have the most stable immigration status. They may get this status in a variety of ways, often through family members or employers who "sponsor" or apply for them by filing a petition. Asylees, refugees, and those granted suspension of deportation or cancellation of removal also may get lawful permanent residence. Other kinds of lawful permanent residents are described below.

Lawful permanent residents cannot vote and must follow certain guidelines when they travel or stay outside the United States. In addition, the government may take away their status and remove them from the United States if they break certain rules. After five years, or in some cases, three years, lawful permanent residents may become citizens or "naturalize" by taking a test and fulfilling other requirements. Lawful permanent residents may file petitions for lawful permanent residence for their spouses and unmarried children. Lawful permanent residents should have Permanent Resident Cards, often called "green cards." Anyone with a Permanent Resident Card can work legally in the United States.

Conditional Residence
Noncitizens who apply for lawful permanent resident status based on marriage to a US citizen or lawful permanent resident are granted "conditional residence" if they were married for less than two years on the date their application for permanent residence was approved. Although conditional residents are lawful permanent residents, to keep their status permanently and no longer be considered "conditional", they must file another petition approximately one and three-quarters years after the first petition is granted asking the government to remove the "conditions" on their residence.

Conditional residents have all the rights of lawful permanent residents. They should have Permanent Resident Cards (Form I-551) with "CR" printed on them. An individual with a Permanent Resident Card can work legally in the United States.

Battered Spouses and Children of US Citizens and Lawful Permanent Residents
In the 1994 Violence Against Women Act (VAWA), Congress created two ways certain immigrant survivors of domestic violence can gain status without their abusers' help. Those who can show they were battered or subjected to extreme cruelty by a US citizen or lawful permanent resident spouse or parent may petition on their own, or ask an immigration judge to grant them a special kind of cancellation of removal.

VAWA applicants can obtain work authorization and, eventually, lawful permanent residence. HIV positive approved VAWA applicants will need an HIV waiver to gain lawful permanent residence, but, unlike most other types of applicants, do not need a US citizen or lawful permanent resident spouse, parent or child, to obtain the HIV waiver. Noncitizens with approved VAWA petitions should have a letter saying their application (Form I-360) has been approved.

Noncitizens granted VAWA cancellation of removal will have a written decision from an immigration judge. As with regular cancellation of removal, VAWA cancellation of removal does not require applicants to undergo a medical examination or to request an HIV waiver.

Abandoned, Neglected and Abused Children
Some children whose parents have abandoned, neglected or abused them may be able to get lawful permanent residence through an immigration status known as Special Immigrant Juvenile Status (SIJS). They will need help from both an immigration advocate and someone familiar with the local family court system because they need a finding by a family court to qualify for immigration status. HIV positive children who qualify for SIJS do not need a qualifying relative to apply for an HIV waiver and may apply based on humanitarian purposes, family unity, or when it is otherwise in the public interest. See HIV waivers for details.

Nicaraguan, Cuban, and Haitian Adjustment to Lawful Permanent Residence (NACARA and HRIFA)
In 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA allows Guatemalan, Salvadoran, and particular former Soviet bloc nationals to apply for suspension of deportation and cancellation of removal, categories described below. In addition, as the name of the law suggests, the Act provides a range of new ways in which Nicaraguans and Cubans in particular can apply for lawful permanent residence. A similar law, the Haitian Refugee Immigration Fairness Act (HRIFA) of 1998, established a new route to immigration status for thousands of Haitians who fled political upheaval in their country several years prior.

Specifically, Nicaraguans and Cubans who entered the United States before December 1, 1995, could gain lawful permanent residence if they applied before April 1, 2000. Haitians who applied by that date qualified for lawful permanent residence if they had applied for asylum or been "paroled" into the United States (see parolees below) before December 31, 1995. Some Nicaraguan, Cuban, and Haitian family members also were eligible for lawful permanent residence, as were some Haitian children who had no parents.

More recently, Congress enacted the Legal Immigration Family Equity (LIFE) Act in December 2000. This law amended NACARA and HRIFA. The government estimated that these new immigration law provisions could affect approximately 10,000 people. The first groups of immigrants potentially affected were persons who never applied under NACARA or HRIFA. Since NACARA and HRIFA originally excluded those who had been previously removed from the United States or had left the United States voluntarily while under an order of removal from applying under these provisions, many people had not applied for status under these acts. These individuals were given until June 19, 2001, to file motions to reopen their exclusion, deportation, or removal proceedings so that they could subsequently apply to become lawful permanent residents under NACARA or HRIFA.

In addition, the new provisions opened the possibility for reapplication for immigrants from Nicaragua, Cuba, or Haiti who had previously submitted applications under NACARA or HRIFA but were denied because they had re-entered the United States illegally after having been removed by INS or having left the country voluntarily while under an order of removal. People in this "denied" category are also allowed to make a motion to have the denial of their adjustment application reopened with the INS. Unlike those that had never applied, nationals seeking reconsideration are not subject to the June 19, 2001 deadline. Thus some of your clients may still be able to apply for permanent residency status under these amended provisions.

Although HIV positive Nicaraguans, Cubans, and Haitians are exempt from the public charge bar (see Public Charge), they must obtain an HIV waiver. This is a major obstacle if they do not have a US citizen or lawful permanent resident spouse, parent, or child (see HIV Waivers).

The Legalization Program ("Amnesty" or "Late Amnesty")
A grassroots movement is building for expanding access to immigration status for noncitizens already in the United States for many years. This route to status is called legalization or amnesty. Nevertheless, Congress refused to pass such a bill in 2000. You can contact immigrant rights organizations in your area to help build the movement for change in the future.

Congress created a legalization program in 1986. Two primary categories of noncitizens qualified for this amnesty: people who had been in the United States without status since January 1, 1982, and certain types of agricultural workers, called Special Agricultural Workers (SAWs). Legalized immigrants should have an alien registration card (Form I-551), or "green card", showing they are lawful permanent residents. The legalization process required all applicants to undergo an HIV test as part of the required immigration medical examination and some people may still be waiting for decisions on HIV waiver requests or appeals.

At the end of 2000, Congress passed a law (the LIFE Act) providing access to lawful permanent residence for a number of noncitizens involved in national lawsuits challenging various aspects of the amnesty program. Noncitizens with only a "Temporary Resident Card" (Form I 688), those who joined the Catholic Social Services (CSS), League of United Latin American Citizens (LULAC) or Zambrano lawsuits before October 1, 2000, and close family members of these amnesty applicants should contact an immigration legal advocate immediately to determine whether they can apply for lawful permanent residence.

Additionally, early in 2004, the US government settled the CSS and LULAC legalization lawsuits. Class members' rights under the settlement are independent of and in addition to their right to obtain legal status under the LIFE Act. For more information, consult the website of the Center for Human Rights and Constitutional Law at www.centerforhumanrights.org.

The CSS and LULAC settlement agreements allow for those who meet certain requirements to apply or reapply for Temporary Resident status under the 1986 amnesty program. This is not a new amnesty program. The application period is open for one year, starting May 24, 2004 and ending May 23, 2005. To qualify, a noncitizen must have been living undocumented in the United States before 1982 and could have applied to legalize during the 1986 legalization program, but did not, for certain specific reasons. More information on who qualifies and application instructions are available at the Center for Human Rights and Constitutional Law at www.centerforhumanrights.org or at the government's immigration website at www.uscis.gov.

The legalization program is important for HIV positive noncitizens because they do not need a relative to qualify for the HIV waiver. See the HIV Waivers for more details.

The Family Unity Program
Spouses and children of noncitizens in the legalization program are eligible for status under the Family Unity program if they have been in the United States since May 5, 1988. There is no deadline for applying and most people who qualify already have applied by now.

When legalization program immigrants gain lawful permanent residence, they can file regular family petitions for their family unity relatives. Family unity immigrants may stay in the US while waiting to gain lawful permanent residence, may obtain work authorization, and are exempt from many of the new laws about gaining immigration status imposed by the 1996 reforms of immigration law. See the section on Gaining Legal Immigration Status for details of these bars. Those with family unity status should have a Family Unity Approval Notice (Form I 797). HIV positive Family Unity applicants are eligible for the same expanded HIV waiver as legalization applicants. See the HIV Waivers for details.

The Diversity Program or "Lottery"
Periodically, Congress creates special temporary programs that grant lawful permanent residence to people from certain countries. Those who get status this way are chosen by a lottery. Generally, the application periods for these lotteries are very short. HIV positive noncitizens with visas from the lottery must have a relative to obtain the HIV waiver to gain lawful permanent residence (see the box on HIV Waiver).

Asylum, Refugee Status, Withholding of Removal, and the Convention Against Torture
Asylum and refugee status are for those who show that they have a "well founded fear" of persecution in their homelands based on race, religion, nationality, political opinion or membership in a social group. Refugees have applied for and received asylum before they came to the United States. Those who apply for asylum once they are in the United States are asylum applicants. If they get asylum, they become asylees. Some asylum applicants are granted withholding of removal (formerly "withholding of deportation") instead of asylum. People who do not qualify for asylum or withholding of removal may ask for protection under the Convention Against Torture (CAT). Refugees must obtain an HIV waiver prior to coming to the US. Asylum applicants, withholding of removal applicants, and applicants under CAT do not need an HIV waiver.

DHS has officially recognized that persecution against HIV positive noncitizens may satisfy the asylum requirements, and some people have gotten asylum because they feared persecution for their sexual orientation. The section on Gaining Legal Immigration Status discusses asylum requirements in more detail.

Asylees and refugees can apply for lawful permanent residence after a year, but there is a limit on the number of asylees who can obtain lawful permanent residence each year. It now takes many years for the government to issue lawful permanent residence to asylees. Those granted withholding of removal or CAT protections are not eligible for lawful permanent residence. When HIV positive asylees apply for lawful permanent residence they must obtain a waiver, but it is different from the waiver that applies to most applicants for LPR status (see HIV Waivers). Refugees obtain this same waiver before they come to the United States, and again when applying for lawful permanent residence. Making refugees apply for the same waiver twice may be illegal - contact the National Immigration Project if you are concerned about this issue.

Refugees, asylees (those granted asylum), and people granted withholding of removal can get work authorization immediately. Asylum applicants may only request work authorization 150 days after they file for asylum. Noncitizens granted CAT protection can get work authorization, but only if the immigration judge decides DHS may not permanently detain them, which is another reason CAT is not the best option for many people.

Refugees and asylees should have a DHS arrival/departure document (Form I 94), as well as an Employment Authorization Document (EAD). Asylum applicants may have an I 94 form and an EAD noting their status as asylum applicants. Those granted withholding of removal or CAT protection might only have a written decision from an immigration judge and an EAD.

Parolees
When DHS stops people before they enter the United States, it sometimes lets them enter the United States to apply for status or to go to immigration court. This is called "paroling" them into the United States. Although these noncitizens paroled in, called parolees, are physically in the United States, the legal system views them as outside the United States. This means they have fewer rights in immigration court proceedings. Noncitizens who are stopped by DHS for being HIV positive may wish to consider asserting their right to be paroled in for "deferred inspection," including undergoing an HIV test by a doctor of the public health service. DHS immigration agents are not allowed to make a medical determination of inadmissibility, and a noncitizen's admission to having HIV/AIDS is not sufficient proof of inadmissibility. The noncitizen will likely be detained in immigration jail, however, so some noncitizens may choose not to assert this right rather than stay in detention. It is also possible that the applicant might be released and given an appointment to return for additional investigation.

Noncitizens paroled into the United States for a year or more are eligible for some public benefits not available to other parolees. All parolees should have an I 94 arrival/departure card with a date stamped on it, and they may also have an EAD noting their status.

Suspension of Deportation and Cancellation of Removal
Prior to April 1, 1997, noncitizens in immigration court could ask for "seven-year suspension of deportation" if they had been in the United States continuously for seven years, could show good moral character, and could illustrate a reasonable fear of extreme hardship if removed. Congress has eliminated this type of relief for people who first got into immigration court after that date.

Now most noncitizens in immigration court may ask for "ten-year cancellation of removal." Unlike seven-year suspension, to qualify for ten-year cancellation, noncitizens must show they have been continuously present in the United States for ten years and that removing them will cause exceptional and extremely unusual hardship to a US citizen or lawful permanent resident spouse, child, or parent. The section on gaining legal immigration status discusses the suspension and cancellation requirements in more detail.

Suspension and cancellation applicants do not have to undergo an HIV antibody test, and they automatically become lawful permanent residents if the judge grants them status. While they are waiting for a decision on their cases, they can ask for work authorization. Those granted suspension or cancellation should have a Permanent Resident Card. While awaiting their card, they can use a written notice from an immigration judge to confirm their status.

Temporary Protected Status (TPS)
The Attorney General of the United States may grant this status for a limited period of time to nationals of certain countries in turmoil. TPS is currently granted to certain nationals of Burundi, El Salvador, Honduras, Liberia, Montserrat, Nicaragua, Sierra Leone, Somalia, and Sudan, although the list of countries changes frequently. The designated period of protection can legally last up to the maximum of eighteen months at a time and may be renewed by DHS under certain conditions. When DHS ceases to renew TPS for a designated country, protection ends, and DHS sends TPS recipients a notice that they must appear in immigration court. At this point, they must either leave the United States or apply for another immigration status. Thus, TPS programs carry a significant risk since they are neither amnesty nor a guaranteed route to lawful permanent residency.

HIV positive noncitizens may apply for TPS, but must request a special waiver. See HIV waivers. TPS recipients can obtain work authorization. They should have an arrival/departure card (Form I 94) and an EAD noting their status.

Salvadorans, Guatemalans, and Eastern Europeans
As mentioned above, the Nicaraguan Adjustment and Central American Relief Act (NACARA) established special routes to immigration status for individuals and families from other countries. Although not provided with the same routes to lawful permanent residency status as certain Nicaraguans and Cubans, Salvadorans and Guatemalans, and nationals from Eastern Europe, including those from Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia, were allowed to file for suspension of deportation or cancellation of removal. The rules governing this law are complicated, though a few of the basic guidelines are included here. Please see an immigration legal advocate for more specific information.

In general, individuals and families from former Soviet Republics or former Eastern European states may qualify if they entered the United States before January 1, 1991, and filed for asylum before January 1, 1992. Guatemalans may qualify if they first entered the United States on or before October 1, 1990 and signed up as part of the American Baptist Churches lawsuit agreement (called the "ABC class"). Guatemalans may also qualify if they applied for asylum before April 1, 1990. Finally, Salvadorans may qualify if they entered the United States on or before September 19, 1990 and either registered for the ABC Class or applied for Temporary Protected Status by October 31, 1991. Alternatively, Salvadorans may also qualify if they applied for asylum before April 1, 1990. People who were apprehended by immigration upon entry or with certain criminal convictions do not qualify. HIV positive applicants must have a qualifying relative to apply for an HIV waiver. See HIV waivers for details.

Registry
Registry allows people who have been in the United States for a very long time, since 1972, to gain lawful permanent residence. One great advantage of registry is that most of the barriers facing HIV positive applicants for lawful permanent residence do not apply.

Voluntary Departure and Deferred Action
DHS district directors and immigration judges may grant "voluntary departure" to noncitizens they could remove from the United States. Noncitizens with voluntary departure must leave by the date stamped on the notice or face stiff fines and penalties, including bars to becoming lawful permanent residents. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 limited voluntary departure grants to a four-month period.

DHS officials also may grant "deferred action" to people they could remove. Since this "status" does not actually appear in immigration law, local DHS officers control whether or not this condition is granted. DHS agents and directors rarely assign deferred action status. Those who do receive deferred action, however, do not have to leave the United States by any particular date and do not face fines and bars to status for failing to leave.

Since deferred action and voluntary departure granted by DHS district directors are discretionary grants of status, DHS may revoke them any time. (DHS cannot, however, revoke voluntary departure granted by an immigration judge.) People granted deferred action or voluntary departure may have a work authorization card.

HIV positive noncitizens ineligible for other forms of status have been granted deferred action; however, these cases usually involve other extremely compelling factors.

Non-immigrants
Non-immigrants have their permanent home or residence in another country. There are many kinds of non-immigrants, including visitors for business or pleasure, foreign students, and temporary workers and trainees. Some noncitizens are eligible to enter the United States "visa free" under the Visa Waiver Pilot Program (VWPP), which allows citizens from designated countries to enter the United States without a visa if they meet certain requirements.

In 2000, Congress created several new kinds of non-immigrant categories. These include special visas for people who have had to wait a long time to get lawful permanent residence (see Part Two of this manual), and visas for certain victims of human trafficking or other crimes (see Victims of Trafficking and of Other Crimes). People in these new categories may eventually gain lawful permanent residence, even though this seems contrary to the normal assumptions about non-immigrants.

All non-immigrants have non-immigrant visas noted by a letter (B, F, H, etc.), which include expiration dates. Non-immigrants who stay longer than originally permitted without an extension from DHS become undocumented. Even before the dates on their visas expire, DHS may deport non-immigrants if they work without permission or violate other conditions of their visas. The 1996 reforms in immigration law added several additional penalties and barriers to immigration status for people who stay beyond the expiration dates on their non-immigrant visas.

Some non-immigrants, including those covered under the new categories created by Congress in 2000, are allowed to work with DHS permission.

Non-immigrants do not take a medical exam to get their visas, but they may need a waiver if they are HIV positive. The box on Travelers with HIV explains how other non-immigrants avoid HIV waiver problems.

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