Section 212(a)(1)(A)(i) of the Immigration and Nationality Act dictates that a non-citizen determined to “have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome,” is ineligible to receive a visa and is ineligible for admission to the United States. However, an immigrant inadmissible to the United States because of HIV may be granted a waiver.
Section 212(g) of the Immigration and Nationality Act allows waiver of the HIV ground of inadmissibility if the barred immigrant is the spouse, unmarried son and daughter, or minor, unmarried adopted child of a United States citizen or United States legal permanent resident (“green card” holder), or if the immigrant is the parent of a United States citizen or United States legal permanent resident.
The wavier is at the discretion of the Attorney General, and discretion will not be exercised unless the immigrant demonstrates that:
1. The danger to the public health created by his or her admission is minimal.
2. The possibility of the spread of HIV by his or her admission is minimal.
3. No government agency will incur any cost in connection with his or her illness without prior consent.
Additionally, a nonimmigrant inadmissible to the United States because of HIV may be granted a waiver. A “non-immigrant” is a non-citizen seeking to enter the United States for a temporary stay.
Generally, a HIV positive non-immigrant will be admitted to the United States for up to 30 days for any lawful purpose provided he or she is not afflicted with symptoms of AIDS, he or she will not pose a danger to the public health, and he or she has sufficient funds for the stay, including monies sufficient to cover medical costs in case of illness.
The Immigration and Naturalization Service also issues blanket waivers for HIV positive non-immigrants to attend recognized events of public interest, such as academic and educational conferences; non-immigrants participating in the event are granted admission for the duration of the event.
To learn more about being HIV positive and gaining/losing an immigration benefit, please contact Spar & Bernstein.