Before 2010, an HIV-positive status provided one basis under which a foreign national could be denied short-term visas or applications for lawful permanent residence in the United States. In January 2010, this ban ended and HIV status stopped being an automatic ground of inadmissibility. However, your HIV status can be factored into the United States Citizenship and Immigration Services’ (USCIS) decision about whether you are likely to become a public charge when making a determination about your permanent residence application. Officials can consider your health when deciding whether you are likely to request public assistance when reviewing your green card application.
Doctors do not perform HIV antibody tests as part of an immigration medical examination for permanent residency applicants anymore, but may ask questions that result in the doctor concluding you are HIV positive, and it is important to be honest during the medical exam. Applications that were denied only because of an applicant’s HIV positive status may now be reopened.
HIV Status as the Basis for Asylum
The Board of Immigration Appeals (BIA) has held that HIV status can be the basis for receiving asylum in the United States. It can also be the exception an asylum seeker designates as the reason for failing to file for asylum within the 1-year deadline. No appeals court has reached this decision or required officers or judges to provide asylum on the basis of HIV-related persecution. However, asylum has been granted to many applicants claiming persecution based on being both gay and HIV-positive.
What constitutes “persecution” for asylum purposes is determined on a case-by-case basis, but it is generally something more than hardship or harassment.
An asylum seeker must show fear of persecution in a country of origin based on HIV status. Simple hardship is not enough. For example, it is not enough to show that you come from an economically impoverished country and therefore cannot access HIV medications. Rather, you will need to show that you fear being mistreated due to the stigma surrounding HIV in your home country.
HIV-Positive Individuals Already in the United States
In certain cases, it may be appropriate for an HIV-positive applicant to request deferred action. This is where a foreign national is given permission by the Department of Homeland Security (DHS) to stay in the country on a temporary basis for humanitarian reasons. However, it is possible that if you apply for deferred action, you will not receive it and will then be removed from the United States by Immigration and Customs Enforcement (ICE).
Those individuals placed in immigration detention facilities often have particular difficulty accessing necessary healthcare and drug therapies. This presents challenges for LGBTQ+ individuals that are HIV positive. Many LGBTQ+ detainees face the real possibility of solitary confinement and sexual or physical violence. They may not receive the healthcare that they need for the months or years it takes to fight deportation. Since there is no right to have counsel appointed in immigration proceedings, they may have to push for access to healthcare alone, often in adversarial situations requiring them to face off against experienced prosecutors.
The United States Public Health Service is supposed to provide healthcare to detainees according to federal law. The Division of Immigration Health Services (DIHS) provides the healthcare. DIHS policies cover what medical care ICE will reimburse. Traditionally, these policies made clear that medical treatment was limited when possible to emergency services. HIV was considered a chronic condition, for which periodic check-ups could be allowed. ICE was sued for a number of detainee deaths, and as part of the settlement agreed to change its policies. However, there continues to be obstacles to healthcare for HIV-positive detainees.