U.S. Immigration Explained Blog

Fortunately for those diagnosed HIV-Positive, the news is positive regarding their travel privileges to the U.S. In an effort to streamline the application process, thereby shorting it by as much as 18 days, these individuals applying for B-1 (visiting on business) and B-2 (visiting for pleasure) visas will generally be granted the waiver on the spot.

Normally, according to the law, HIV is regarded as a “communicable disease of public health significance” and would be grounds for inadmissibility under INA regulations. Therefore, non-citizens with HIV who apply for B-1 and B-2 visas must file a waiver of inadmissibility.

The new streamlined method allows DOS (Dept. of State) consular officers to interview the applicant and determine admissibility. While, in the past, many of the requirements were simply assumed; the new procedure spells out every detail that must be agreed and adhered to. The regulations under 8 CFR (Code of Federal Regulations) § 212.4(f)(2) are as follows:

i.            The applicant has been diagnosed as HIV positive. (They should have a letter from their doctor explaining the extent of their condition and if the patient has complied with the treatment measures. This applies to many of the following requirements. )

ii.            The applicant does not presently exhibit any symptoms that would indicate an ongoing, contagious infection identified with acquired immune deficiency syndrome.

iii.            The applicant fully understands the severity and risk to others of this medical condition.

iv.            If admitted to the U.S., this person presents only a minimal risk to the public health system and to others who may come in contact with them.

v.            The applicant will carry with them at all times, or have ready access to, medicines appropriate to the disease, including antiretroviral drugs, while in the U.S. Furthermore, they will have either financial resources or insurance in place to cover any medical expenses that might be incurred should they get sick while in the U.S.

vi.            While the applicant is in the U.S., no government agency will incur costs of any kind without prior written consent. (This would come into play if the person is specifically coming to the U.S. for clinical trials or treatment.)

vii.            The applicant is only coming to the U.S. on a B-1 or B-2 visa.

viii.            The applicant will only be allowed to stay in the U.S. for no more than 30 days. (If the 30 days is exceeded, except for emergency circumstances, they will not be allowed to return to the U.S. using the streamlined waiver.)

ix.            The applicant must be eligible for admission to the U.S. under all other government regulations. (If another waiver has to be obtained, they cannot be allowed in on the streamlined HIV waiver.)

x.            The applicant understands that they can not be admitted under the VWP (Visa Waiver Program). (VWP countries have a treaty with the U.S. permitting its citizens to visit on B-1 or B-2 visas for up to 90 days.)

xi.            The applicant understands that if they do not comply with all of these conditions, they will not be granted a streamlined waiver. (Also, failure to comply makes them ineligible for any future visits under this program.)

xii.            The applicant understands that, during this stay in the U.S., they will not be permitted to apply for extensions, changes or adjustments to their present nonimmigrant status.

xiii.            The applicant is not denied the right to apply for asylum.

xiv.            If applicant is granted asylum, they must establish their eligibility to change their immigration status. If there are grounds for inadmissibility, such must be waived by the appropriate waivers.

xv.            Nothing within this waiver shall be regarded as a waiver of inadmissibility.

One of the major changes in this new streamlined waiver process is in regards to LPR (lawful permanent resident) status. As it stands now, someone who is HIV-positive seeking to come to the U.S. on this waiver may not be allowed to become a LPR. However, leniency is sometimes granted as the consular officer decides on a case by case basis.

Most importantly, if you have any questions or concerns regarding this new streamlined procedure for HIV-Positive persons or any other immigration matter, you are strongly advised to seek legal council

Tags: Citizenship, Green Card, HIV, Immigration, immigration attorney, immigration lawyer, US Citizenship, Visa, visas, waiver