On October 30, 2009, President Obama announced that the rule ending HIV as a basis for denying immigration status or barring travel to the United States would take effect as of January 4, 2010. How will this affect you if you are a non-citizen and HIV-positive?

I have been waiting to file an application for lawful permanent residence. Will I be able to apply for a green card now?

HIV will no longer be a bar to applying for permanent residence. However, you will still need to be otherwise eligible to apply for a green card. In other words, you still must qualify for a green card through a family petition, employer sponsor, the Diversity Visa lottery, asylum, or some other means.

Does the new rule mean that I don’t have to qualify for an HIV waiver to get a green card?

Since being HIV-positive is no longer a reason to deny someone lawful permanent residence, there is no need to file a waiver.

I have a waiver pending. What should I do?

Now that the regulations have been issued, you should send a letter to USCIS explaining that the HIV ban has been lifted, that a waiver is no longer required in your case, and that they should adjudicate your green card application immediately.

Can I get a refund for the $545 waiver fee that was already filed?

No. Since immigration law changes all the time, USCIS will not refund fees that were appropriately paid at the time an application (or waiver) was filed.

What if my case was denied because I’m HIV-positive? Can I reopen it?

It may be possible. However, this will require some analysis since you will probably still need to qualify for the benefit that was denied. So, if you won the Diversity Visa lottery in the past but couldn’t obtain a legal permanent residence application then because of your HIV status, you will not be able to do so now because those visas are no longer available beyond the year in which they were issued.

If your application was denied in the past because of your HIV status, you should contact the Immigration Representation Project at Legal Services of New Jersey to determine what, if anything, can be done.

If I am otherwise eligible for a green card, should I apply immediately or should I wait until January 4, 2010?

All applications to adjust status will continue to require a general medical examination before a green card is issued. Until January 4, 2010, it is likely that USCIS-certified doctors will continue to test green card applicants for HIV. If you do not want USCIS to know that you are HIV-positive, you should wait until after January 4, 2010, before you apply for a green card.

However, if USCIS already knows your HIV status, or you do not mind disclosing your HIV status to them, there may not be any reason to wait to file. It is possible that informing USCIS that you are HIV-positive will continue to be relevant to your case for reasons discussed below.

Does the rule ending the HIV ban on immigration mean that HIV status is irrelevant to my immigration case?

No. All applicants for lawful permanent residence must demonstrate that they are not “likely to become a public charge.” If you are in relatively good health, being HIV-positive should not be a barrier to getting a green card. However, USCIS can look at all of the circumstances of a person’s life in determining whether that person is likely to become a public charge. If you have been too disabled by your HIV to work, it is possible that your application could be denied if USCIS finds that you will not be able to support yourself.

However, since the new regulations remove HIV testing from the medical examination, it is not likely that your HIV status will come up if you wait until January 4, 2010, to apply.

I applied for asylum because I am HIV-positive. How will this change in the regulations affect my application?

This change should not affect your application for asylum. To gain asylum, you must prove that you have a well-founded fear of persecution based on being HIV-positive. The fact that the U.S. will soon end the HIV ban is not relevant to whether you would face persecution in your country of origin. For more information about asylum, please contact the Immigration Representation Project (IRP) at Legal Services of New Jersey (LSNJ). You may reach the IRP by calling LSNJ-LAW™, LSNJ’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529) or 732-572-9100 if you are calling from outside New Jersey. Hotline hours are Monday through Friday, 8 a.m. to 5:30 p.m. If you are not eligible for assistance from Legal Services, the hotline will refer you to other possible resources.

This article appeared in the December 2009 edition of Looking Out for Your Legal Rights^®.

This information last reviewed 10/26/11