HIV +ve test result - Is there any chance of applying and how ?

[Chrisdias]

I am on an L1 visa - The employer is sponsoring my green card application and has their own set of lawyers for it. My medical antibody test shows HIV +ve. Questions :

1. The results are with the doctor - Is he supposed to report them to the USCIS even if I don't proceed with my application - I told him not to complete it for now.
2. I still have over a year left on my L1 - Can USCIS deport me ?
3. Is there any chance that I can apply for a Waiver and I'm wondering what is the best way of doing this since the attorneys are with my company - Will my whole company need to know this as I believe in case of L1 they are submitting the application on your behalf and will have to see all the waiver applications.
4. What else do I need to consider and think about ?

Im willing to speak to an attorney for a price if you are well versed with this time of situation.

Thanks

[sandra]

Q:
I would like to know if there's someone out there who has HIV+ during the process of applying green card. Is the chance zero? or there's a way to obtain a green card? I dont have relative in US, I'm applying the green card through employment and I have come to the last stage by using EB2 process. However, I have diagnosed HIV+...please help.

A:
This is covered by statute:

Quoting 8 CFR PART 245a (4) Applicants who filed for temporary resident status prior to December 1, 1987, are required to submit the results of a serologic test for HIV virus on Form I - 693, "Medical Examination of Aliens Seeking Adjustment of Status", completed by a designated civil surgeon, unless the serologic test for HIV was performed and the results were submitted on Form I - 693 when the applicant filed for temporary resident status. Applicants who did submit an I - 693 reflecting a serologic test for HIV was performed pri or to December 1, 1987, must submit evidence of this fact when filing the I - 698 application in order to be relieved from the requirement of submitting another I - 693. If such evidence is not available, applicants may note on their I - 698 application their prior submission of the results of the serologic test for HIV. This information shall then be verified at the Regional Processing Facility. Applicants having to submit an I - 693 pursuant to this section are not required to have a complete medical exam ination. All HIV-positive applicants shall be advised that a waiver of the ground of excludability under section 212(a)(6) of the Act is available and shall be provided the opportunity to apply for the waiver. To be eligible for the waiver, the applicant must establish that: (i) The danger to the public health of the United States created by the alien's admission to the United States is minimal, (ii) The possibility of the spread of the infection created by the alien's admission to the United States is minimal, and (iii) There will be no cost incurred by any government agency without prior consent of that agency. Provided these criteria are met, the waiver may be granted only for humanitarian purposes, to assure family unity, or when the granting of such a waiver is in the public interest in accordance with § 245a.3(g)(2) of this chapter.

Source:
Green card application when HIV positive

[sandra]

On July 30, 2008 President Bush acted to end the statutory ban on entry to the U.S. by people with HIV. Until now, only HIV was singled out in the immigration law for exclusion. In signing the President's Emergency Plan for AIDS Relief (PEPFAR), Bush repealed the statutory ban on HIV-positive tourists and immigrants, and restored jurisdiction to the Department of Health and Human Services (HHS) to determine whether HIV is a "communicable disease of public health significance."

For now, if you are HIV positive and planning to travel to the U.S. or planning to apply for legal permanent resident status you must still obtain a waiver of inadmissibility.

Who qualifies to apply for a waiver to the HIV ground of inadmissibility?

To qualify to apply for an HIV waiver, an applicant must be:

• The spouse of a U.S. citizen or legal permanent resident; or
• The unmarried son or daughter of a U.S. citizen or legal permanent resident; or
• The minor, unmarried lawfully adopted child of a U.S. citizen; or
• The parent of a son or daughter who is a U.S. citizen or legal permanent resident; or
• Eligible to self-petition under the Violence against Women Act (i.e. the abused spouse of a U.S. citizen or legal permanent resident); or
• A Refugee or Asylee who falls under a “humanitarian” exception to the HIV bar

Are there categories of HIV-positive foreign nationals who cannot get a “green card” unless they have a qualifying relative to make them eligible to apply for the HIV waiver?

Yes, unfortunately there are several categories of applications for legal permanent residence which do not allow HIV-positive foreign nationals to obtain legal permanent residence unless the applicant also happens to have a qualifying relative. Although this list does not include all categories, some of the most common categories include:

• Labor certification and other employment-based applications for legal permanent residence;
• Diversity Visa lottery winners;
• NACARA and HRIFA applicants;
• Adult married children of U.S. citizens; and
• Brothers and sisters of U.S. citizens.

What are the other requirements to be granted a waiver?

In addition to having a qualifying relative, an applicant to an HIV waiver must also:

• Demonstrate, that the danger to the public health of the United States created by his or her admission is minimal;
• Demonstrate that the possibility that the spread of the infection created by his or her admission to the United States is minimal; and
• Prove that there will be no cost incurred by any level of government agency of the United States without prior consent of that agency.

More information available at:
Immigration Equality - 1.4.2 Issues - HIV - HIV Waivers

[sandra]

See also...

Streamlined Waiver Application for HIV-Positive Visitors
Streamlined Waiver Application for HIV-Positive Visitors | U.S. Immigration Explained

I would suggest you also email world law on their home page to discuss directly with a lawyer, in addition to the info you get posted here.