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Part Three: Gaining Legal Immigration Status and Becoming a US Citizen
Each immigration status has different requirements. Getting an immigration status is very complicated, and applying for any status carries certain risks, including removal if your application is denied. The risk may be manageable and worth taking, however, if the client needs to work or wishes to become a permanent resident or US citizen. Unfortunately, many noncitizens with HIV will not be able to get the status they want.
This section describes various routes to lawful permanent residence. It also will describe how immigrants may become US citizens, which is important for many reasons, including access to voting, traveling freely, sponsoring family members, and receiving public benefits. For information on ways to secure immigration status not mentioned in this section, contact the National Immigration Project of the National Lawyers Guild (on back cover). Remember: this manual gives you only basic information about gaining immigration status. Noncitizens with HIV/AIDS should consult with an immigration expert before contacting DHS.
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Most applicants for lawful permanent residence must get an HIV waiver. Noncitizens who do not qualify for a waiver should not apply for lawful permanent residence, because DHS may remove or deport them.
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Most people want to become lawful permanent residents (get a "green card") because this status provides the most security short of actual citizenship. Lawful permanent residence is difficult to lose, and lawful permanent residents can work legally. Furthermore, most lawful permanent residents can become citizens after five years. Up until that time and despite the relative security of legal residency, however, DHS can remove lawful permanent residents or keep them from coming back into the United States if they leave.
People can become lawful permanent residents in many ways: through a relationship with a family member, through employment, through a DHS "lottery," or through another special program. Acquiring lawful permanent residence through a relative can be either challenging or relatively uncomplicated, but may be a very lengthy process, depending on which relative "sponsors" or applies for the noncitizen. Applying for lawful permanent residence through an employer can be very complicated and requires an experienced immigration advocate. Applying for status through a lottery is substantially easier but only a small percentage of total applicants win the opportunity to pursue this option.
Applying for Lawful Permanent Residence Through Family Members
US citizens and lawful permanent residents can file applications on behalf of their close family members, such as spouses, minor children, and adult unmarried children. Only US citizens can "sponsor" their parents, brothers and sisters, or married children over 21. Citizens must be at least 21 to sponsor their parents, and brothers and sisters of citizens must wait many, many years - sometimes decades - before they receive lawful permanent residence. The difference in waiting times depends on a complicated quota system involving the number of visas already used by applicants from the same country and the "preference" category the immigrant is in. The relationship determines the preference category. For instance, spouses and children under 21 are in one category; children of US citizens over 21 are in another.
The family immigration process requires two applications: a petition and a visa application. The petition shows that the immigrant has a family relationship with the sponsor that qualifies her or him for lawful permanent residence. The visa application is the actual application for lawful permanent residence. Applicants for lawful permanent residence must show they are not "inadmissible" as defined by immigration statute. The two inadmissibility grounds that cause the most problems for noncitizens with HIV/AIDS are HIV and "public charge." When applying for lawful permanent residence, all applicants must undergo a medical examination which includes an HIV antibody test. See section on HIV Antibody Testv.
The quote system does not apply to spouses and children under 21 of United States citizens, so they may file the petition and the visa application simultaneously. Spouses and children of lawful permanent residents must file the two applications separately, however. When DHS approves the petition, it assigns a "priority date" to the immigrant. The immigrant must wait to file the visa application (the application for lawful permanent residence) until the quota system says that all applicants in the immigrant's category with that priority date can file for lawful permanent residence.
DHS usually wants to interview the sponsor and the intending immigrant before making a decision on the application. It makes decisions on both parts of the application at the same time if the intending immigrant is the spouse or child of a US citizen. For applicants who must wait to apply for lawful permanent residence, DHS usually approves the petition without an interview, but requires an interview on the visa application. These interviews take place either at a DHS office in the United States or at a US consular office abroad. At the interview about the application for lawful permanent residence, noncitizens with HIV must obtain the HIV waiver and overcome the "public charge" problem.
How long will it take to get lawful permanent residence?
Historically, spouses, children and parents of US citizens got lawful permanent residence fairly quickly. With the influx of new immigration cases, however, DHS now has so many pending applications for these immigrant visas that applicants may wait for more than a year for an interview. Because of the long waiting periods for spouses and children of lawful permanent residents, Congress passed a law in December, 2000, which allows some of these applicants to live and work in the United States with legal immigration status (a "non-immigrant" visa) until they receive permanent residence. This only applies, however, to people who had filed applications before December 21, 2000 and who already have waited three years for their status.
DHS and Congress suspect that many noncitizens marry US citizens or lawful permanent residents for the sole purpose of receiving an immigration status. For this reason, applicants who were married for less than two years when they get their permanent resident cards are "conditional" residents. Conditional residents must file another petition approximately one and three-quarters years after their permanent residence is granted asking the government to remove the "conditions" on their residence.
Should a noncitizen apply?
Noncitizens with HIV should consider the likelihood of getting lawful permanent residence before applying. If DHS officials deny the application, the agency probably will begin removal proceedings, placing the individual or family's situation in jeopardy. Furthermore, if an immigrant goes abroad to process for lawful permanent residence and the consular office or DHS officials deny the application, the applicant may be stranded with no legal way of returning to the United States.
Applicants should decide the answers to the following questions before applying.
- Does the applicant have the basic qualifications for an HIV waiver?
- Can the applicant overcome the public charge problem?
- Can the applicant overcome the HIV waiver's "Extra Test"?
- Can the applicant stay in the United States to go to the lawful permanent residence interview?
HIV Waiver Basics
Most applicants for lawful permanent residence are subject to an HIV antibody test as part of the application process. (Those who win cancellation of removal or the old suspension of deportation are not required to undergo a DHS medical examination.) The type of waiver applicants must obtain depends on the status for which they are applying.
Asylees, refugees, special immigrant juveniles, and those who applied through the legalization program may apply for an HIV waiver based on "family unity, humanitarian purposes or public interest" concerns. It is important to note that while immigration statute exempts these categories of noncitizens from the public charge ground of inadmissibility when they apply for lawful permanent residence, DHS imposes an additional standard similar to public charge when it makes HIV waiver decisions, as noted in the box on the Obtaining the HIV Waiver: The "Extra Test".
Other applicants who do not fit into the categories above may apply for an HIV waiver if they are:
- husbands or wives of US citizens, lawful permanent residents, or people with immigrant visas waiting to process their permanent residence cards;
- unmarried sons and daughters of US citizens, lawful permanent residents, or people with immigrant visas waiting to process their permanent residence cards;
- parents of US citizens, lawful permanent residents, or people with immigrant visas waiting to process their permanent residence cards; or
- battered spouses or children of US citizens or lawful permanent residents.
For many applicants, meeting the requirements above is not the problem; the more challenging hurdles for obtaining an HIV waiver are the "public charge" condition in immigration law and the DHS requirement that people applying for HIV waivers overcome an "extra" test, which is not indicated in the law anywhere. This test includes proving that an individual will not hinder public health, is unlikely to infect others with HIV, and will not cost a government agency unless that agency gives prior consent for services or benefits. More information on this test is included in the Extra Test section.
There are several other kinds of HIV waivers. HIV waivers may also be available to noncitizens applying for a temporary status, such as Temporary Protected Status (TPS) or a visitor visa. HIV positive noncitizens from TPS-designated countries may apply for TPS if they apply for an HIV waiver based on family unity, humanitarian purposes or the public interest and fulfill the other TPS requirements for their country. A visitor may ask for the special waiver for visitors. This waiver is for people visiting the United States for a short time period, such as to attend a conference, visit close relatives, or receive medical treatment. These waivers are different than the waivers for noncitizens seeking lawful permanent residence.
The Public Charge Problem
Another major obstacle to gaining lawful permanent residence is being "likely at any time to become a public charge." As with HIV/AIDS, this is a ground of inadmissibility that the DHS can use to 1) prevent a noncitizen from entering or coming back into the United States, or 2) deny a noncitizen's application for lawful permanent residence. HIV positive applicants for lawful permanent residence often find it more difficult to meet the public charge test than to get the HIV waiver.
In recent years, many noncitizens decided not to apply for public benefits that they or their children needed because they feared it would harm their immigration status. To clear up confusion, in May 1999, the former INS issued field guidance on public charge to all immigration offices. The guidance clarified that an immigrant's use of non-cash benefits, such as health care (except long-term care) will not be considered in public charge determinations. For a copy of the 1999 Field Guidance about Public Charge, consult the HIV and Immigrants section of the National Immigration Project's website at www.nationalimmigrationproject.org.
Before we explore in more detail public charge and lawful permanent residence, here are a few observations regarding how public charge affects other immigration situations:
Public Charge and Citizenship
Public charge, or receiving public assistance benefits, is not a factor in determining whether someone can become a citizen unless the person lied to receive the benefits. Some people may be asked about use of benefits to determine if they violated program rules, for example, whether they received SSI while outside the US.
Public Charge and Deportation/Removal
Deportation based on receipt of public benefits is extremely rare. The 1999 Field Guidance emphasizes that DHS can only deport someone for receiving public benefits (cash benefits and long-term care) if the person was required to pay back the government for the benefits, the government has sued the person for repayment, and the person failed to repay. The person must have used cash or long-term care benefits based on conditions that existed prior to entering the US. The person must have both used and been sued for the benefits within five years of becoming a lawful permanent resident.
Public Charge and Lawful Permanent Residence
The 1999 Field Guidance does not mention HIV specifically. It does say, however, that a person who is "primarily dependent on the government for subsistence" is a public charge. Unfortunately, DHS still seems to use old guidance on HIV/AIDS that assumes most people with HIV/AIDS will become dependent on government subsistence. If your clients can show that this assumption is wrong, especially given the advances in HIV/AIDS medication and treatment, they should be able to overcome the public charge problem.
Here is a summary of important points:
- The public charge ground requires that all people applying for lawful permanent residence through the regular family immigration process get a special "enforceable affidavit of support." (See below for details.)
- Only certain cash benefits and long-term institutionalization cause public charge problems.
- Because DHS is supposed to look at whether the applicant is likely to become a public charge in the future, past use of public benefits is not necessarily a problem.
- DHS must look at a variety of factors, the "totality of the circumstances," before deciding someone is a public charge, including the applicant's health.
An applicant who must get an affidavit of support (detailed in the next section) and is unable to do so fails the public charge test; any other factors of the public charge test become irrelevant. DHS will deny an application without the affidavit and place the applicant in immigration proceedings.
Enforceable Affidavits of Support
Many applications for lawful permanent residence are based on petitions filed by US citizen or lawful permanent resident family members ("the sponsors"). In 1996, Congress passed a law requiring sponsors to provide affidavits swearing that they will support the applicants and showing that they have "the means to maintain an annual income equal to at least 125% of the Federal poverty line." (In 2004, the federal poverty level for an individual was $9,310.) If the sponsor cannot show the necessary income, he or she may co-sign an affidavit with another person, not necessarily a relative, who meets the income requirements. Noncitizens applying for lawful permanent residence through family members will automatically fail the public charge test if they cannot get an affidavit of support.
Many people may not be able to show they have enough income or assets to meet the new affidavit of support requirements. Before giving up, check with an immigration advocate who has done a substantial number of family immigration applications. There may be innovative ways to meet the affidavit requirements. Make sure clients have resolved all of their problems with the affidavit of support before going to an interview, since DHS officials may put applicants into immigration proceedings immediately if they deny their applications.
Looking To the Future: The "Prospective Test"
The public charge test is a "prospective test." This means DHS must "make a forward-looking determination" and focus on the future, not the past. Nevertheless, how long ago someone received cash benefits or was institutionalized often affects how likely it is to happen again in the future. The longer the period of time someone received cash benefits and the higher the amount that they received, the more likely DHS may consider that person a public charge. Being employed full-time or having a sponsor should overcome the past use of benefits, although DHS may consider many factors in making the final decision.
Totality of the Circumstances Test
The public charge test also is a "totality of the circumstances" test. According to current immigration law and the 1999 Field Guidance, DHS must consider at least the following factors when evaluating public charge:
- Age,
- Health,
- Family status,
- Assets, resources and financial status, and
- Education and skills
No single factor should determine whether an applicant would be a public charge. Applicants should especially make sure they explain the following:
- Work history, current employment, and offers of employment,
- Ability to earn a living, including mental and physical conditions, and
- For immigrants living with HIV/AIDS, a plan for covering future health care costs.
They should show why they will not become "primarily dependent on the government for subsistence."
Clients should not necessarily avoid using public benefits for fear of the public charge test. As the next section shows, only some benefits cause public charge problems.
Receiving Public Benefits
No applicant is required to pay back public benefits to gain lawful permanent residence. In addition, the 1999 DHS Field Guidance says that only the following situations trigger an automatic public charge problem:
- Receiving cash to maintain the person's income, including Supplemental Security Income (SSI), cash Temporary Assistance to Needy Families (TANF), and state General Assistance;
- Long-term institutionalization, such as long stays in nursing homes or mental health facilities at government expense.
Benefits that do not count and may not be considered at all in the totality of the circumstances test:
- Cash benefits not used for income, for instance, supplemental cash TANF, some energy assistance, and child care;
- Cash benefits the applicant's family members receive, as long as that cash is not the family's only source of income;
- Non-cash benefits, including the following:
- Food stamps, WIC, and other food assistance;
- Medicaid, testing and treatment of communicable disease symptoms, Children's Health Insurance Program (CHIP), prenatal care, free or low-cost health care (excluding long-term care in a nursing home);
- Public housing, energy assistance, Head Start, and job training;
- Short institutionalization for rehabilitation;
- Cash benefits that have been earned, including Unemployment Insurance, Social Security retirement and survivors' benefits, government pension benefits, and veterans' benefits;
- Benefits received by battered or abused immigrants who have filed self-petitions under the Violence Against Women Act immigration provisions.
According to the 1999 Field Guidance, some public benefits that raise concern, such as a small amount of cash to maintain income, may be outweighed by other factors in the "totality of the circumstances" test. Past receipt of cash benefits for income and past long-term institutionalization do not automatically make someone a public charge. The history of using these benefits is only one of many factors DHS should consider in the totality of the circumstances test.
How Public Charge Adds Up
Advances in HIV/AIDS detection and treatment should undermine DHS assumptions that HIV positive applicants inevitably will become dependent on the government. Furthermore, there must be current evidence that reasonably shows the person will become a public charge.
People who depend on SSI for income may not overcome public charge. People with sponsors and comprehensive health care coverage should be able to avoid public charge concerns. If a client cannot avoid the problem now, there may be ways to build better factors for the totality of the circumstances test for the future. An immigration advocate might be able to assist you and your client to explore such factors early on and plan for future immigration challenges.
Try to make sure your client is available for an interview. If your client can stay in the US to apply for lawful permanent residence and to interview with DHS, it is more likely your client will overcome both the HIV and public charge inadmissibility problems. Applicants who know they will have problems overcoming public charge factors should not travel abroad for their lawful permanent residence interviews. If they do, odds are they will never be able to get back into the United States legally.
Obtaining an HIV Waiver: The "Extra Test"
DHS applies a three-part test to all HIV positive noncitizens seeking lawful permanent residence, even though this test does not appear in immigration law. To meet the extra test, an applicant must show that granting him or her status will pose the following:
- minimal danger to the public health,
- minimal possibility of the spread of HIV, and
- no cost to a government agency without that agency's prior consent to providing necessary services or benefits.
Applicants can meet the first two parts of the test by showing that they are aware of the nature and severity of their medical condition, are willing to attend educational sessions, and understand the way HIV is transmitted. Generally, a letter from a doctor or counselor, plus the applicant's statement about his or her understanding of HIV/AIDS, will satisfy these requirements.
The third part of the test may be the most difficult to overcome, depending on the noncitizen's situation. The applicant must show that no cost will be incurred by a government agency without that agency's prior consent to providing necessary services or benefits. This essentially has been interpreted by DHS to refer to health care costs. If an applicant can show they or their
sponsors have health care insurance that will cover any possible future medical expenses, for example, he or she will have a very strong application for the HIV waiver. If not, other evidence must be proffered, such as financial resources necessary to cover projected lifetime medical costs of HIV treatment, statements from specific private/government health care and research facilities assuming responsibility for treatment, or statements of consent from local or state health care officials. If an applicant is asymptomatic and has a job offer, this will also help them meet the requirements. The National Immigration Project has legal resources on HIV waivers for immigration attorneys.
In 1999, at the request of the Surgeon General, DHS issued special guidance regarding HIV positive refugees and the third prong of the Extra Test. Since refugees are eligible for existing federally funded health care programs such as Medicaid, Refugee Medical Assistance, and a variety of services provided under the Ryan White CARE Act, DHS has decided that this means the government has given prior consent to providing these benefits. Refugees, therefore, no longer have to submit individual documentation of having met the third prong of the Extra Test.
The same logic should apply to asylees and trafficking victims because Congress permits them to receive the same public benefits as refugees, though there is no specific DHS guidance at this time. HIV positive asylees who apply for and are denied adjustment of status do not automatically lose their status as asylees. DHS or an immigration judge must officially revoke asylum status, and may only revoke it for certain, limited reasons. If your HIV+ asylee client has concerns about meeting the third part of the Extra Test, contact an immigration attorney or accredited representative for a risk/benefit analysis.
Many advocates believe the extra test is illegal. Contact the National Immigration Project of the National Lawyers Guild (see back cover) if you represent a noncitizen who cannot overcome it.
Can the applicant stay in the US to get lawful permanent residence?
If possible, noncitizens should try to stay in the United States for the interview on their lawful permanent residence applications. This is called "adjusting status." If they entered the United States without government permission or worked without authorization, however, they may have to go to a US embassy abroad (usually in their home countries) to get "immigrant" visas, which will confer lawful permanent residence once they return to the United States. This is called "consular processing." There are a number of other reasons why they may have to process their visas abroad. The most common ones are listed below.
Normally, noncitizens that entered the United States without government permission, lost their status, or worked without government approval can only get lawful permanent residence by going abroad, with the exclusion of excepted persons because of various federal laws, such as the individuals protected under LIFE, NACARA and HRIFA. In 2001, Congress decided to allow these people to apply to adjust status here if they pay a special $1,000 penalty. Only people whose sponsors filed their applications before April 30, 2001, are now eligible.
It is often harder for people to get their applications approved abroad than in the United States because they usually cannot bring their family members or legal representatives with them to the consular interview. Without this support it is much more difficult to challenge a consular officer's decision that there are problems with an application. Unfortunately, while an applicant can appeal an adjustment denial, there is no right to appeal a consular denial.
Unlawful Presence: Another Reason to Stay in US to Process Lawful Permanent Residence
"Unlawful presence" is another important reason to explore with your client and an immigration advocate the possibilities of remaining in the US to process lawful permanent residence. In 1996, Congress added many new barriers to getting lawful permanent residence, including what are called the "unlawful presence" bars.
Currently, if a noncitizen stays in the United States without DHS permission for more than 180 days and then leaves the country, he or she will trigger these bars. The departure from the US triggers the bars. Once barred, the noncitizen only can then get lawful permanent residence if the noncitizen can show that a US citizen or lawful permanent resident spouse, parent or child would suffer extreme hardship if the noncitizen does not obtain status. This is called an "extreme hardship waiver." There are some very limited exceptions for certain classes of noncitizens (for instance, for children under 18, asylum seekers, and domestic violence
survivors). Immigration laws will prohibit or "bar" people who cannot show an exception or get a waiver from entering the United States or getting lawful permanent residence for three or ten years, depending on how long they were in the United States without government permission. If the noncitizen is able to remain in the US to "adjust status," he or she may never trigger the bars.
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Anyone who has been in the United States for more than 180 days without DHS permission should see an immigration expert before leaving the United States, even to go to an interview for lawful permanent residence abroad.
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Lawful Permanent Residence through Cancellation of of Removal or Asylum
Clients who cannot get lawful permanent residence through family members or employers should explore other possible options with the help of an immigration advocate who knows about HIV. Applicants for these statuses are not subject to the HIV and public charge grounds of inadmissibility. Cancellation of removal and asylum do have other specific requirements that may be hard for a client to meet, but DHS has recognized that being HIV positive actually may be a ground for gaining status these ways.
Ten-Year Cancellation of Removal
Cancellation of removal ("cancellation") is only available in immigration court. If an immigration judge grants cancellation, the noncitizen becomes a lawful permanent resident without having to undergo a medical examination or overcome the public charge ground of inadmissibility. Applicants must show the immigration judge that they have been in the United States continuously for ten years before receiving the notice for their immigration hearing, that they are of "good moral character," and that a US citizen or lawful permanent resident spouse, parent or child will suffer "exceptional or extremely unusual hardship" if DHS returns them to their home country. In the past, under a more lenient provision of immigration law called "suspension of deportation," some immigration judges found that HIV positive noncitizen applicants would suffer "extreme hardship" if DHS deported them. Under cancellation, however, hardship to the applicant is irrelevant.
Congress intentionally eliminated the more lenient seven-year suspension of deportation because it believed too many people, including gay men and people with HIV, were gaining status through this channel. The hardship test will especially hurt such applicants because they may lack the traditional family members Congress requires must suffer hardship. Unfortunately, because of the Defense of Marriage Act, noncitizens cannot claim domestic partners and same-sex spouses as legal spouses for immigration purposes. Nevertheless, many HIV positive noncitizens, whether straight or LGBT, may have US citizen children and may qualify for ten-year cancellation of removal. They should consult an immigration advocate.
Exceptional and Extremely Unusual Hardship
Here are some questions to ask your client that may help identify whether he or she can adequately meet the hardship test for ten-year cancellation:
- How long have your US citizen or lawful permanent resident spouse, children, and parents been living in the United States?
- Do they depend on you to survive?
- Do they depend on you in other ways?
- If you leave, would they have to go with you?
- Do they speak the language of your home country?
- How long have the children been in school?
- Do they have strong community, church, or family connections here?
- Would they be able to find work in their home country?
- Would they be persecuted or discriminated against in the home country because of their relationship to you?
- Can you think of any other way in which their suffering would be worse than other family members of noncitizens who are removed?
Please note that all the questions are about the relatives. Again, hardship to the applicant is now completely irrelevant, unless it also causes hardship to the qualifying relatives.
Asylum
Those who fear persecution if they return to their home countries because of race, religion, nationality, political opinion, or social group are eligible for asylum. HIV positive noncitizens may claim asylum on one or more of these grounds. Traditionally, political opinion was the primary basis for granting asylum. In recent years, however, the Board of Immigration Appeals and the federal courts, which hear appeals from immigration courts including the
Board of Immigration Appeals, have recognized that asylum seekers may be persecuted for an "imputed" political opinion, for instance, when the persecutor thinks someone is a gay activist because he is HIV positive. They also have found that asylum seekers may be persecuted for being members of a social group, one of the more difficult to prove yet widely used criteria. In recent years, lesbians, gay men, and bisexuals have been granted asylum based on "social group." Although not as firmly established in statute and case law, several appellate opinions have begun including transgendered individuals as a protected social group in immigration law. In addition, some DHS asylum officers, as well as federal and immigration judges, have granted asylum to HIV positive noncitizens based on social group. In 1996, DHS officially recognized HIV as a possible "social group" asylum:
[A]liens with HIV who are seeking asylum or withholding of deportation may be able to qualify for recognition as members of a "particular social group" if the evidence in the individual case supports such a conclusion. (73 Interpreter Releases 203 (Feb. 12, 1996). )
Noncitizens may request asylum in several venues. If they have not been arrested by DHS, they may apply for asylum "affirmatively" to the DHS. Noncitizens may also apply for asylum "defensively" before an immigration judge in immigration court. Being undocumented and being HIV positive do not prevent people from applying either way. There are several advantages to applying directly with DHS: (1) the applicant does not risk immediate deportation if the affirmative application is denied and (2) the applicant gets another chance to apply defensively when he or she gets put into immigration court. It is also possible that a noncitizen might be more likely to win an affirmative case before a DHS officer rather than a defensive case before an immigration judge, or vice versa, depending on the immigration officers and courts where you live. Work with immigration advocate or asylum lawyer in your area to know what to expect. Having as many opportunities as possible to seek asylum is important.
As long as their applications have not been denied, asylum applicants should get work authorization within 180 days of applying for asylum. Those granted asylum, called "asylees", do not immediately become lawful permanent residents. They only become eligible to apply after a year, and there is a backlog of applicants. Nevertheless, asylees may work with DHS permission and qualify for an exception to many of the disqualifications for public benefits in the 1996 Welfare Reform bill.
Procedural changes eliminating asylum for many who fear persecution
In another attempt to reduce the numbers of noncitizens gaining legal status in the United States, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act requires that individuals apply for asylum within a year of entering the United States. Many people who would be persecuted in their homelands because they are HIV positive or for other reasons will not realize that asylum is a possible way to gain safety and legal immigration status. Others may not have the resources or self-confidence to apply for asylum until they meet with an advocate. For these reasons, the one-year filing deadline may be a problem for many noncitizens. There are exceptions to the one-year filing requirement, however, so potential asylum applicants should not give up just because of this deadline. As with any complicated immigration application, they must meet with an advocate with significant experience in asylum.
Who qualifies for asylum?
To qualify for asylum, applicants with HIV must show everything on the following list:
- They have been persecuted in the past or they will be persecuted if they return to their homelands; and
- The people who persecuted them or who will persecute them are connected to the government in their home country or are people the government cannot or will not control; and
- The persecutors believe the applicants have a political opinion that they wish to suppress, such as the political opinion that people with HIV/AIDS should be treated with dignity, and/or
- the persecutors believe the applicants belong to a social group, such as people with HIV or gay men, that the persecutors wish to subdue; and
- The reason the persecutors will persecute or have persecuted the applicants is because they believe the applicants have a political opinion or belong to a social group they disfavor.
Persecution by someone the government cannot or will not control
Although it may be difficult, applicants must show that the government tolerates or approves the actions of the persecutors, and that the reason the persecutors target the applicant is because they wish to repress his or her opinion or group. If it is not the government directly that persecutes people with HIV/AIDS and gay or transgendered individuals, then the applicant must show that the government either tolerates or approves of others persecuting these groups. For instance, if bands of vigilantes regularly attack and beat up people with HIV/AIDS, the applicant must show that asking the police to prosecute the attackers is fruitless.
Because the victim belongs to a targeted social group
It is also essential to show the connection between the acts of persecution, either past or anticipated, and the political opinion or social group for which the applicant is persecuted. Applicants often show they have been or will be persecuted and that their opinion or group is generally disfavored, but fail to show that the reason they are persecuted is because of their opinion or social group. For instance, if the police continually harass a young man with HIV/AIDS, the applicant must show that they do this because they think or know he is HIV positive. It helps to show they have specifically said things indicating why they are persecuting him in particular or that they do not generally harass all young men. This can be difficult to prove, however, and many immigration applications are denied because of the inability to directly correlate and prove harassment or persecution with a particular social group. Below are some suggestions for substantiating the reasons for persecution.
Collecting evidence: How you can help
Although the applicant's own statement (or "affidavit") is very important, statements by witnesses, experts and the persecutors themselves, if at all possible, often make the difference between a winning and losing case. General documentation about conditions in the home country help, but they only provide the necessary background. The applicant needs the specifics that make the story believable. If an expert is willing to look at the applicant's specific story and say it fits what he or she knows about how people like the applicant are treated, this makes the applicant's case even stronger. HIV/AIDS service providers may have better access to experts on how people with HIV are treated in various countries. Asylum applicants may also feel more comfortable discussing their experiences with you than with a traditional immigration advocate, and in working with you, they may give a more truthful and complete statement of their case.
The back cover of the manual has the names, addresses, and phone numbers of organizations that may have information helpful to HIV positive asylum applicants.
Questions to ask your client about qualifying for asylum
- Are you from a country in conflict?
HIV positive noncitizens from countries in conflict may have traditional asylum claims, as well as claims based on being in a group persecuted for being HIV positive.
- Do you think you will be discriminated against or harmed by others because of your HIV status or sexual orientation if you must return to your home country?
People with HIV/AIDS, and gays, lesbians, and transgendered individuals may be persecuted both for being in a disfavored social group and for an imputed or expressed political opinion.
- Who do you think will harm you? If it is not the police or military, can you show that the government tolerates or approves of their behavior?
Try to find witnesses or others who have experienced similar problems in the applicant's homeland. Academics and HIV/AIDS advocates from the applicant's home country may be willing to write affidavits supporting your client's application. If there are any relevant laws, get copies and show either that they do not protect your client or that the government does not enforce the protections that allegedly exist.
- How can you show that the reason the person persecuted you or would persecute you is because you are HIV positive?
Did the persecutor say something? Is it generally known? If so, get someone to write an affidavit explaining how it is generally known. Are there newspaper or magazine articles about the problem? Both general and specific documentation help.
- Are you active in the HIV/AIDS or gay community in the United States?
Activities here may be the basis for claiming future persecution. They also may help overcome the new filing requirement discussed below.
Gaining lawful permanent residence after getting asylum
Asylees (those who have been granted asylum) are eligible to apply for lawful permanent residence after one year. There is a backlog of asylees waiting to adjust. Therefore, many asylees must wait many years, even a decade, before they can finally become lawful permanent residents. When they do apply to adjust status, they must undergo the DHS medical examination, including an HIV antibody test. The public charge ground of inadmissibility does not apply, though the HIV ground and some of the grounds created by the 1996 immigration reforms are pertinent.
Asylees adjusting status may request an HIV waiver "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." They do not need a US or lawful permanent resident spouse, parent, or child to qualify. HIV positive asylees should consult an immigration advocate before trying to gain lawful permanent residence, since they will need an HIV waiver, and the "Extra Test" may apply.
Since Congress decided that refugees can receive the kind of public assistance benefits that normally would result in public charge concerns, DHS has interpreted this to mean the government has given prior consent to providing these benefits and issued guidance indicating this in 1999. The same logic should apply to people who have received asylum because Congress says they can receive the same public benefits as refugees, though there is no DHS guidance on asylees at this time. Also, asylees who apply for and are denied adjustment of status do not automatically lose their status as asylees. It must be officially revoked, and may only be revoked for certain, limited reasons. If your HIV positive asylee client has concerns about meeting the third part of the "Extra Test," contact an immigration specialist for a risk/benefit analysis.
Becoming a US Citizen
The combination of anti-immigrant policies and the elimination of most public benefits for lawful permanent residents have significantly increased the numbers of noncitizens seeking US citizenship. The advantages of US citizenship include the ability to vote, eligibility for public benefits, and increased ease in assisting relatives to become lawful permanent residents. A common misconception among many is that noncitizens automatically lose citizenship in their home country when they become US citizens. This is not necessarily true. In many countries, swearing allegiance to the United States does not result in the automatic loss of citizenship to that country. The home country may recognize "dual citizenship."
Most noncitizens gain US citizenship through "naturalizing," an administrative process during which an applicant must meet certain requirements. Any individual born in the United States is automatically a US citizen. Some people who were born while their US citizen parents were outside the United States also are US citizens, but the rules that determine who is a citizen in this situation vary according to the date of birth, which parent is a US citizen, and the marital status of the parents. Noncitizens also may "derive" citizenship from their parents when their parents naturalize. Additionally, some children adopted by US citizen parents may automatically be citizens.
Naturalization requirements
Naturalization applicants do not need to undergo a medical examination, and the HIV and public charge grounds of inadmissibility do not apply. Nevertheless, as noted below, HIV positive naturalization applicants should prepare for other possible problems when they attempt to naturalize.
Most people apply for naturalization after they have been lawful permanent residents for five years. To qualify, applicants must:
- be 18 years old or older,
- have continuously resided in the United States for five years after obtaining lawful permanent residence,
- have been "physically present" in the United States for at least half this period,
- have continuously resided in the United States between filing the naturalization application and receiving citizenship,
- have resided for three months in the state or DHS district where the application was filed,
- be of "good moral character,"
- be "attached to the principles of the US Constitution,"
- demonstrate basic English language skills, and
- pass a test on knowledge of the history and government of the United States.
Special categories
Spouses of US citizens qualify for naturalization, assuming they meet the other requirements, after three years of continuous residence in the United States. They must have been living with their US citizen spouse for those three years, unless the spouse subjected them to domestic violence, and have been physically present in the United States for half that time. Lawful permanent residents who serve in time of war (which includes the period of time since September 11, 2001) have no waiting period to apply for naturalization. Otherwise, lawful permanent residents who have served in the US military for one year may also apply for naturalization.
General problems for naturalization applicants
The most difficult problems for most naturalization applicants are the continuous residency, language, and history and government requirements. The other requirements may cause problems in individual cases. An individual who suspects he or she may have problems meeting one of the requirements should contact an immigration advocate or agency before applying. It is important to be prepared for problems prior to applying to avoid DHS placing an applicant in immigration court if the agent finds he or she committed a deportable offense, such as fraud, abandoning lawful permanent residence by leaving the country for an extended period of time, or having not been eligible originally to become a lawful permanent resident.
Continuous residence
While certain absences from the United States do not break "continuous residence," rules determining which absences cause problems can be complicated. (This is why there is an additional "physical presence" requirement.) In general, absences of less than six months should not pose a problem; absences of more than a year will.
English language and US history and government
Applicants must show that they speak, read, and write English. A DHS officer will conduct the naturalization interview in English and review the applicant's answers on the naturalization application as part of the oral English test. The applicant is also asked to write out a sentence in English.
At the interview the applicant will be required to answer civics questions, either orally or on a written multiple-choice test. DHS no longer accepts results from the standardized reading and writing test that naturalization applicants formerly took. Applicants should study the "100 Questions" DHS may ask. To get the most current questions, check with a local immigration agency or look on the DHS website.
Exceptions to the language and civic knowledge requirements
Exemptions to the language and civic knowledge requirements are based on age and years of residence. Long-time lawful permanent residents 50 years of age or older may not have to meet the English language requirement, may be interviewed with an interpreter in their own language, and, in some cases, may be responsible only for 25 possible civics questions. Applicants who obtained lawful permanent residence through the legalization program, and have therefore already satisfied the US history and government requirements, do not have to meet the civic knowledge requirement again. Applicants with a "physical or developmental disability or mental impairment" who are unable to take the tests also are exempt, however, the applicant must obtain a medical waiver.
Special Problems for HIV Positive Applicants
If a naturalization applicant tested HIV positive at the time she or he applied for lawful permanent residency, DHS will have knowledge of it. Otherwise, since naturalization applicants are not required to undergo a medical examination and the HIV ground of inadmissibility does not apply, DHS probably will not know an applicant's HIV positive status. DHS may learn of an applicant's HIV status, however, through some other question or requirement. For instance, if the section of the naturalization application on work history reveals that the person is no longer able to work, DHS may ask why. This, in turn, may open the door to other questions that raise problems. The primary difficulties applicants should explore prior to the naturalization process are the good moral character question and the possibility that DHS will find that the person originally should not have received lawful permanent residence.
Good moral character
"Good moral character" is a vague term, leaving much to the discretion of DHS officers. Lying under oath, many criminal convictions, and a "willful failure to support" children may damage good moral character. Receiving public benefits, however, should only affect good moral character if the applicant fraudulently obtained the benefits.
Failing to register with Selective Service for possible military duty can pose significant good moral character problems for many naturalization applicants. All men between the ages of 18 and 26 must register in order to show good moral character. If a naturalization applicant between the ages of 26 and 31 did not register, he must show that he did not know he had to register. Applicants over 31 years of age (on the date of application) are usually excused from this requirement, unless they have other good moral character problems.
Being HIV positive, by itself, is irrelevant to good moral character, but may raise other good moral character questions. For instance, if an applicant admits he or she was a drug user when asked how he or she became HIV positive, DHS may deny citizenship for lack of good moral character. Historically, gay men, lesbians, and transgendered individuals have experienced problems with DHS in many contexts, including the naturalization process. According to DHS' own interpretation, however, sexual orientation should affect the good moral character requirement only when the sexual acts involve any of the following: minors, the threat or use of fraud, the giving or receiving of money or anything of value, taking place in public or solicitation in a public place, or violation of a marital vow. An individual who experiences problems with a DHS officer because of sexual orientation should work with an immigration advocate to challenge such discriminatory behavior.
Not eligible for lawful permanent residence when obtained
DHS may deny citizenship and put an applicant into immigration court proceedings if it finds that the person should not have been granted lawful permanent residence originally. If an applicant's lawful permanent residence is based on a marriage to a US citizen or lawful permanent resident, DHS may re-examine whether the marriage was fraudulent, especially if the couple is now divorced. If DHS finds marriage fraud, it will place the applicant in immigration court. Generally, applicants should be careful about answering questions that may reveal fraud, such as working without DHS permission, since they could be subject to civil and criminal penalties and removal.
Of particular concern to HIV positive noncitizens is the public charge ground of inadmissibility. If a noncitizen was receiving public benefits at the time he or she gained lawful permanent resident status, for instance, DHS may find that it should not have granted lawful permanent residence to that person in the first place. Other than in this instance, however, the HIV and public charge grounds of inadmissibility are not relevant for naturalization.
Read the Naturalization Application Closely
Any HIV positive lawful permanent resident who is considering applying for citizenship should carefully review the naturalization application form with an immigration advocate. For each question on the form, consider the following:
- Will this answer unnecessarily raise questions for the DHS about the applicant's HIV status or sexual orientation?
- If so, where could the DHS officer's questions lead?
- How can the applicant truthfully answer these questions, or the DHS officer's follow-up questions, without damaging the chances of gaining citizenship?
Questions about naturalization
- Were you born in the United States?
With a few rare exceptions, such as children of diplomats, people born in any of the fifty states of the United States, Washington, D.C., and certain commonwealths, territories, and possessions, including Puerto Rico, the US Virgin Islands, Guam, and the Northern Mariana Islands are US citizens at birth.
- Was either of your parents a US citizen when you were born?
People born outside the United States may be US citizens if one of their parents was a US citizen and resided in the United States at some time before the child was born. If the other parent was not a US citizen when the child was born, the rules are more complicated. Since the rules have changed over time and the rule that applies depends on when a person was born, an individual in this category should consult an immigration advocate.
- Has either of your parents naturalized?
People born outside the United States may "derive" citizenship through a parent who has naturalized. Again, the rules for children of naturalized citizens are complicated. An individual whose mother or father became a US citizen after he or she was born should contact an immigration advocate.
- How long have you been a lawful permanent resident?
In order to apply for naturalization, noncitizens must be lawful permanent residents. Lawful permanent residents married to US citizens can apply after three years of having permanent resident status, as long as the other requirements are met. People who have won self-petitions as battered immigrants should be able to naturalize in three years if the abusive spouse was a US citizen. Other noncitizens who have been lawful permanent residents for at least five years are eligible to apply for naturalization.
- Have you been outside the United States for more than six months at any time during the past five years?
Absences from the United States for more than six months or for more than a year may cause problems in meeting the continuous residence requirement, although the requirement may be overcome. Applicants with significant absences from the United States should seek help from an immigration advocate.
- Have you filed federal income tax returns for every year you have been a lawful permanent resident?
Although the connection between this question and the naturalization requirements is not obvious, DHS often insists that applicants provide income tax returns. The DHS agent may be looking for fraudulent marriages or a lack of good moral character. If the noncitizen has not filed income taxes, it is a good idea to remedy this situation before applying.
- If you are a male between 18 and 31, have you registered with Selective Service?
All men between the ages of 18 and 26, even undocumented men and conscientious objectors, must register for the Selective Service. Male naturalization applicants between the ages of 26 and 31 who failed to register for selective service before the age of 26 must convince DHS at the naturalization interview that they did not know they had to register. After an individual turns 31, DHS will be less concerned about the applicant's failure to register. Failing to register can cause major delays in processing an application and may result in its denial. Applicants between 26 and 31 should immediately contact an immigration advocate about how they can overcome this problem. Generally, male applicants who are 26 or younger should register immediately if they have intentions of applying for naturalization. There is an exception for men a in valid non-immigrant status.
- Have you ever belonged to a political organization that may be disfavored by the US government?
The naturalization application form asks for a list of all organizations, parties, etc., to which the applicant has belonged. Belonging to organizations which DHS or the Department of State views as communist or "terrorist" may result in the denial of citizenship. DHS may also question an applicant's "attachment to the principles" of the US Constitution because of membership in other disfavored organizations. The federal courts, however, have historically ruled against denying citizenship to individuals for constitutionally protected beliefs or activity. In addition, affiliation with certain organizations may trigger lifestyle questions noted below.
- Did you get your lawful permanent residence through a spouse from whom you are now divorced?
The naturalization application form requires the noncitizen to list all of his or her spouses during the past five years. DHS may question whether an applicant committed marriage fraud to gain lawful permanent residence if the marriage ended soon after the applicant gained status. If suspicions arise, DHS could require the applicant to prove again that the marriage was not fraudulent. If it determines the marriage was fraudulent, DHS will put the applicant into immigration court proceedings.
- Did you test HIV positive and get a waiver before you became a lawful permanent resident?
DHS should know that a naturalization applicant is HIV positive if the applicant was HIV positive when he or she became a lawful permanent resident. A positive HIV serostatus may prompt a DHS officer to ask questions exploring the applicant's good moral character and original eligibility for lawful permanent residence.
- Do you know whether you had to overcome the public charge ground of inadmissibility (exclusion) when you became a lawful permanent resident?
This issue may arise if a naturalization applicant has used public benefits, especially soon after he or she gained lawful permanent residence. In such cases, DHS may ask questions to determine whether a naturalization applicant should have been denied lawful permanent residence because he or she was likely to become a public charge.
- Have you ever been detained or arrested for any reason?
This is a question on the naturalization application form, which can reveal both mandatory disqualifications from citizenship for certain criminal convictions and possible good moral character problems. Committing certain acts can damage good moral character, even if the person was not convicted for a crime.
- Have you worked continuously for the past five years?
Applicants must list everywhere they have worked for the past five years. Major gaps in work history or current lack of work could lead to questions that reveal the client's HIV status or use of public benefits. Using public benefits soon after gaining lawful permanent residence can raise questions about whether the applicant was a public charge at the time he or she became a lawful permanent resident. Revealing HIV seropositivity could prompt a DHS officer to question whether the applicant should have received lawful permanent residence. The officer may also question the applicant about good moral character issues, such as drug use or sexual activities.
- In case the DHS officer asks how you were exposed to HIV, can you truthfully answer in a way that does not raise good moral character questions?
Exposure through needles could raise questions about drug use, which could damage good moral character, especially if the use was a crime. Exposure through sexual activity could raise questions if the applicant had sex with a minor, while married to someone else, in public, or resulting from public solicitation or prostitution. Individuals in this situation should speak with an experienced immigration advocate before applying for naturalization.
Conclusion
Applicants should not start the naturalization process without preparation. Identify and find solutions to problems before applying. Many noncitizens prefer to stay in lawful permanent resident status rather than end up in immigration court because they applied to become citizens without realizing the potential pitfalls.
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