Federal memo signals significant change on HIV immigration policy

Green card applications that would have otherwise been denied based solely on the applicant’s HIV status have now been placed on hold, in anticipation of a rule change from U.S. Health and Human Services that will effectively end a ban that has been in existence for more than two decades.

The Sept. 15 memo, authored by three key officials within U.S. Citizenship and Immigration Services, instructs all agency officers “to hold in abeyance any waiver application and associated benefit request (such as adjustment of status or refugee), which would be denied under current law, if the only ground of inadmissibility is that the applicant has been diagnosed with HIV infection.”

The move to end the 22-year ban on HIV positive immigrants began in August 2008 when Pres. George W. Bush signed the reauthorization of a law that allowed the Department of Health and Human Services to consider removing HIV infection from the list of “communicable diseases of public health significance” that bar immigrants from entering the country. In July the agency published a proposed amendment to that effect and began accepting public comment on the rule change. There are currently 12 countries that prohibit entry of HIV-positive immigrants — Armenia, Brunei, Iraq, Libya, Moldova, Oman, Qatar, Russia, Saudi Arabia, South Korea, Sudan and the U.S.

In light of the HHS proposed rule, USCIS will not deny any adjustment, refugee, or other benefit application if the sole ground of denial of the application would be based on inadmissibility due to HIV infection. Nor will USCIS deny any waiver application if the sole ground of inadmissibility is HIV infection. If the applicant’s sole ground of inadmissibility is HIV infection, and the officer finds either that the alien does not qualify for a waiver, or that a waiver is not warranted as a matter of discretion, all written decisions should state that the case will be placed on hold and automatically reexamined by USCIS, pending the outcome of the rule. The hold is only for cases where the application would be approved, but for the HIV infection.

The memo prepares workers within the agency for a repeal (if only interim) of the HIV infection ban, which is a significant shift in immigration policy. The decision on the proposed rule is expected within the next few weeks.

More than 1.1 million people in the U.S. are infected with HIV, and more than 250,000 are estimated to unknowingly have the disease. Although the number of people living with HIV/AIDS in Iowa remains relatively low when compared to other states — as of Dec. 31, 2008, there were 2,045 such people in the state — Iowa has seen increasing numbers each year since statistics have been kept. In addition, the state estimates that there are an additional 500 to 625 individuals in the state who have the virus but are unaware of their status.

Although a diagnosis of HIV was initially considered a death sentence, the disease has become a manageable, chronic condition that can be controlled with medications.