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Part Two: Understanding the Impact of HIV on Immigration Status
HIV as a Ground of Inadmissibility: How it works
Two major sets of rules prevent noncitizens from entering and/or staying in the United States: the grounds of inadmissibility and deportability. HIV is not a ground of deportability, but is a ground of inadmissibility. This means DHS can "remove" someone from the United States for HIV only if the person entered the United States without government permission. DHS cannot deport people for being HIV positive or having an AIDS diagnosis if they entered on visas or now have lawful permanent residence.
Because HIV is a ground of inadmissibility, DHS may attempt to keep HIV positive individuals who are trying to enter the country, except US citizens and most lawful permanent residents, out of the United States. This includes temporary visitors (non-immigrants) and those intending to live in the United States permanently (immigrants). Another inadmissibility ground that is a barrier for many HIV positive noncitizens is the "public charge" ground, which means that an individual will be deemed dependent upon federal benefits. (See details on public charge in Part Three). Most people applying for lawful permanent residence must show they are admissible, since DHS may deny lawful permanent residence to anyone who has HIV/AIDS, whether that person applies from another country or from inside the United States.
Rejecting Noncitizens Trying to Enter the US
Although DHS does not test people for HIV when they try to enter the United States, everyone except US citizens and lawful permanent residents must get a visa to enter legally. Noncitizens who want to immigrate permanently to the United States as lawful permanent residents must submit to a medical examination that includes an HIV antibody test. People coming to the United States for other reasons, such as study, work, or a visit, must fill out a "non-immigrant" visa application which asks: "Have you ever been afflicted with a communicable disease of public health significance?"
In immigration law, "infection with the etiologic agent for acquired immune deficiency syndrome" or AIDS is specifically listed as a "communicable disease of public health significance." Since this is a reason for keeping noncitizens from entering the United States, DHS can try to turn away anyone who answers "yes" to this question. DHS also may try to keep out individuals whom agents think may be HIV positive based on evidence, such as the person carrying AIDS medications in his or her luggage. The box on Travelers with HIV has more information on how to avoid these types of problems and what to do when they happen.
Non-immigrants
If an HIV positive noncitizen applying for a non-immigrant visa knows that HIV is a communicable disease of public health significance but checks "no" on the question about communicable diseases, DHS may deny the visa because the agency regards this as fraud. If a non-immigrant visa applicant checks "yes," or if DHS suspects the person is HIV positive, DHS will deny the visa unless the applicant asks for the special waiver for visitors. This waiver is for people visiting the United States for a short time, such as to attend a conference, to visit close relatives, or to receive medical treatment. It differs from the waivers for noncitizens seeking lawful permanent residence. Also, noncitizens with HIV are not 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.
Lawful Permanent Residents
Lawful permanent residents (LPRs) who plan to travel outside the United States should be aware that all the inadmissibility grounds apply to them, including the HIV and public charge grounds, if they are gone for more than 180 days or have committed criminal acts in the US or abroad. Individuals in these categories should meet with an immigration advocate before they leave the United States. In practice, however, some immigration officials at the border may subject HIV positive lawful permanent residents to additional delays or scrutiny, even those who have left for less than 180 days or have not committed criminal acts.
Applicants for Lawful Permanent Residence
DHS requires most applicants for lawful permanent residence to undergo a medical examination, which includes an HIV antibody test. This is true whether a noncitizen is applying from another country or from inside the United States. Applicants who test HIV positive cannot become lawful permanent residents unless they get an HIV waiver. Waivers are often hard to get, and not everyone is eligible. The section on the HIV Waiver explains this process in detail. Remember that there are a few categories of applicants who are not required to submit to a medical examination at all, including applicants for cancellation of removal.
The HIV Antibody Test
DHS requires most applicants for lawful permanent residence to submit to a medical examination given by a doctor on a DHS list. The doctors on this list are called "civil surgeons" even though they are not necessarily surgeons. The medical examination consists of many tests, including an HIV antibody test. Civil surgeons start by giving applicants the Enzyme-Linked Immuno-Sorbent Assay (ELISA) HIV antibody test. If the noncitizen tests positive or indeterminate, the doctor must perform another ELISA and then the Western Blot test to confirm the applicant's HIV seropositivity. If all three tests are positive, the doctor should
tell the noncitizen about the test results. Whether the doctor says anything or not, the client should ask for a copy of the HIV test results. The doctor does not give the results directly to DHS, but rather gives the noncitizen the medical results in a sealed envelope. The noncitizen must bring the sealed envelope to the interview at DHS or the US embassy. State or local laws, however, may require the doctor to report HIV positive test results to state or local health departments.
Applicants for lawful permanent residence should not wait to learn their HIV status until they have to undergo the DHS medical examination. They should request an HIV test first with a local center that provides confidential or anonymous testing, so that they can weigh the risks of continuing with their applications.
Questions your client may ask
Can DHS remove me from the United States because I am HIV Positive?
If someone entered the United States without government permission after April 1, 1997, DHS could remove that person solely for being HIV positive. Since DHS also can remove such individuals for the much simpler reason that they entered without permission, it is more likely that this is what the agency will do. DHS may, however, try to remove someone who is HIV positive for both reasons: being HIV positive and entering without DHS permission. Other common reasons noncitizens get removed from the United States are for using fraudulent documents and for committing crimes.
It is unlikely that DHS will find out a noncitizen is HIV positive unless someone informs DHS. This is why it is very important that you find out before referring your client for services whether an agency has strict confidentiality policies and will not report HIV positive noncitizens to DHS. You can read more about this in the public benefits section on Verifying and Reporting Noncitizens to DHS. You also should counsel clients not to contact DHS before they have discussed their case with an immigration advocate.
Reassure your clients that DHS will not find out from you about their HIV status. As you know, the most important thing for them to do is to get the counseling they need about their HIV status. While they are doing that, you and an immigration advocate can help them figure out what else they need to do about their immigration status, work, and any other assistance they may need.
Can I lose my status because I am HIV positive?
Being HIV positive will not change your client's immigration status as long as she or he is in the United States. If the noncitizen tries to change immigration status, or to get a status when she or he does not have one, being HIV positive may prevent the person from getting the desired status. In many cases, it may be better for them to remain in their current status than to risk being removed from the United States when they try to get permanent residence or another status.
Noncitizens often lose their status for reasons other than being HIV positive. People with only temporary status, such as a student visa or Temporary Protected Status, will lose their status when the specified time period runs out. Lawful permanent residents may lose their status for committing crimes. DHS also may prevent some HIV positive lawful permanent residents from coming back into the United States if they leave, in limited circumstances, such as if they have been abroad for 180 days or more, or if they have committed crimes.
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DHS may keep HIV positive noncitizens out of the United States, keep them from coming back in, or keep them from changing their status. It also may remove them if they entered without government permission.
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What will happen if I need to go back to my home country for a short time?
DHS can stop anyone with HIV/AIDS, except US citizens and most lawful permanent residents, from entering the United States. If a noncitizen is already here in the United States and needs to go back to his or her home country for a short time, he or she may need to request advance permission from the DHS to come back into the United States. This permission is called "advance parole." DHS only gives advance parole to certain noncitizens, and noncitizens must obtain it before they depart. Knowing who needs advance parole can be complicated - advise your client to consult an immigration advocate before leaving the US for any reason. Noncitizens who must get advance parole and who leave the United States without it may not be able to get back into the country.
Even if they get advance parole, however, DHS may prevent them from coming back in if the agency thinks they are HIV positive (see the Travelers with HIV for more information). If DHS stops someone with legal immigration status from entering the United States because they are HIV positive, that person will have to get an HIV waiver in order to return to the US. (See the section on the HIV Waivers for details.) This does not apply to most lawful permanent residents, unless they left for more than 180 days or committed criminal acts.
Undocumented noncitizens with no application for legal immigration status will not be able to get back in the US legally. Being HIV positive is not the problem - having no status or right to status is. Moreover, Congress changed the law so that undocumented people, who have a right to status, such as through a US citizen spouse, may lose it if they leave the United States. The section on Gaining Legal Immigration Status explains how some of the 1996 changes in immigration law harm undocumented immigrants.
People who have been through the immigration system and have been ordered to leave by an immigration judge or DHS officer are prohibited from re-entering the United States for at least five years. If they come back in without DHS permission, they can be charged with committing a federal felony. Although many of these people have been allowed to plead to lesser misdemeanor offenses in the past, attorneys general in various districts have begun instituting more aggressive prosecutorial approaches, making immigration cases for repeat offenses more serious legally. Furthermore, immigration matters that have additional criminal charges are taken to trial more often in some districts due to changes in immigration policy approaches. Thus, it is more likely, in some areas of the US, that immigrants may receive incarceration, hindering further attempts to gain an immigration status.
DHS can stop any noncitizen with HIV, including some lawful permanent residents, from coming back into the United States. Problems for noncitizens with HIV arise because HIV is a "ground of inadmissibility." HIV as a Ground of Inadmissibility explains this in more detail. Noncitizens whom DHS suspects are HIV positive may need HIV waivers to get back in to the United States. This does not mean noncitizens should necessarily be turned away at the border. (See Travelers With HIV to learn more about a noncitizen's right to a hearing). For many noncitizens, obtaining a waiver may be impossible. It may be quite difficult for some lawful permanent residents as well. The section on the HIV Waiver explains why getting these waivers may be difficult. Noncitizens with HIV who need to leave the United States should understand and weigh the risk of not getting back into the country before they leave.
Travelers With HIV
The first step for noncitizens with HIV who want to leave the United States is to find out if they need "advance parole" to get back in. They also should be aware that DHS may try to keep them from getting back in because they are HIV positive and should be prepared to assert their right to a hearing.
Although DHS does not require a medical examination for everyone trying to come into the United States, DHS officials may keep people out whom they suspect are HIV positive or have an AIDS diagnosis. DHS may stop people because they look sick or because they are carrying HIV/AIDS medication. A DHS officer may also stop someone she or he thinks is gay, lesbian, or transgendered, even though sexual orientation is no longer a ground for denying entry to the United States. Some DHS officers may use the HIV ground to harass people they think are gay or lesbian.
Most lawful permanent residents with valid Permanent Resident Cards should not be screened for admission when they come back into the United States, with a few exceptions. If a returning LPR falls into one of the exceptions, he or she should be ready to overcome the HIV and public charge grounds again. These exceptions include but are not limited to staying outside the United States for more than 180 days or having a conviction for or admitting to certain criminal acts in the US or abroad. A returning LPR facing pending criminal charges may also have problems returning. Any noncitizen in this situation should consult an experienced immigration attorney prior to leaving the US. All lawful permanent residents with HIV/AIDS should be prepared to assert their right to a hearing with an immigration judge if they are stopped by DHS when coming back into the United States. They may be detained. If detained, they may be eligible for bond and release from detention.
There are special waivers for visitors (non-immigrants) with HIV/AIDS who are stopped at the border or an airport. Noncitizens who plan to stay permanently in the United States (immigrants) do not qualify for this special waiver for visitors, however, and can only get an HIV waiver if they have a spouse, child, or parent who is a US citizen or lawful permanent resident. While a noncitizen who plans to stay in the US applies for the waiver, DHS may detain them (the box on the HIV Waiver explains the waiver requirements). For this reason, some noncitizens with HIV who leave the United States run the risk of not being able to get back in.
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Know Your Rights
Immigration border agents are not supposed to make medical determinations and a noncitizen's own admission to having HIV is not sufficient proof to deny entry. The noncitizen should be paroled in for deferred inspection for admission and undergo an HIV antibody test administered by a doctor of the Public Health Service (a doctor approved by immigration.) The doctor will notify immigration of the HIV test results. DHS may detain (jail) the noncitizen during this process or give them an appointment to return.
If a noncitizen is eligible to apply for a waiver, he or she may ask immigration for the waiver. If the noncitizen is not eligible or is later denied a waiver by immigration, he or she will then go before an immigration judge.
Because of the 1996 laws reforming many immigration procedures, DHS officers now may "summarily remove" certain noncitizens entering the United States, without a hearing with an immigration judge. This procedure is called "expedited removal" and applies to those trying to enter the United States with false or no immigration documents. It does NOT apply to HIV positive noncitizens with valid visas or to lawful permanent residents. Thus a non-immigrant or visitor with valid entry documents should not be subject to summary removal. Any noncitizen wishing to challenge their expedited removal by DHS should insist on a hearing with an immigration judge. Otherwise, a DHS agent may try to convince the noncitizen to leave the United States on the next plane or bus.
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Tips for Travelers
Finding HIV-related medicine or literature about AIDS in a noncitizen's bag may lead a DHS officer to ask a traveler questions about HIV. For this reason, visitors (non-immigrants) should try not to carry their HIV medicine or literature about AIDS in their luggage when they come into the United States. Other noncitizens with HIV who are leaving the US should consider bringing only the amount of medicine they will need for their trip and plan to get new medicine when they return. It is important that ALL travelers know their rights.
- If a DHS agent stops and questions a visitor (non-immigrant) with HIV, the visitor should ask for the HIV waiver for visitors. This is different than the waiver for noncitizens intending to stay in the United States (immigrants).
- If a DHS agent won't grant the waiver, the visitor should ask for a hearing before an immigration judge.
- If a DHS agent stops and questions a lawful permanent resident, the lawful permanent resident should demand to call his or her lawyer. If the agent arrests him or her, he or she should insist on a hearing with an immigration judge.
- If a DHS officer decides any noncitizen traveler is HIV positive, the noncitizen should talk to a lawyer before answering any of the DHS officer's questions. Otherwise, what the noncitizen says can be used against him or her in an immigration hearing. DHS agents are not required to inform an individual of their rights until after their arrest and placement in formal proceedings. Therefore, there are numerous cases where immigrants are not informed of their rights while in DHS custody.
- Noncitizens stopped by DHS may wish to assert their right to be paroled into the United States for "deferred inspection," since only immigration-approved doctors, not immigration agents, can make a medical determination of inadmissibility. A noncitizen's admission to having HIV is not sufficient proof to keep him or her out. DHS may decide to detain (jail) the noncitizen during this process, however, or release them with an appointment to return.
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