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He also wants to know what he should do now that he knows he has HIV.
John will not lose his asylee status because he has HIV but he has to file an HIV
waiver before he can become a lawful permanent resident. He should do this after
consulting with an immigration attorney. Currently, the waiting period for an asylee
who filed a green card application in 2000 is approximately six or seven years.
Chapter 10: Immigration 18
HIV WAIVERS
Section 212(a)(1)(A) of the Immigration and Nationality Act renders aliens who have a
“communicable disease of public health significance” statutorily inadmissible to the
United States. As HIV is considered such a disease, aliens who are HIV-positive must
obtain a waiver if they wish to be lawfully admitted to the U.S.58
There are waivers available for applicants seeking admission both as non-immigrants and
immigrants. However, as discussed below, various eligibility requirements apply and
certain discretionary factors are considered for each type of waiver.
I. Waivers for Non-Immigrants59
Two different waivers are available to HIV positive non-immigrants seeking admission to
the United States: (1) a Routine HIV Waiver and (2) a “Designated Event” Waiver.
Applicants seeking a non-immigrant visa are not required to take a medical examination.
However, consular officers, prior to the issuance of a visa, and CBP officers at ports-ofentry
do have the authority to require a non-immigrant to submit to a medical
examination should they have any reason to believe it necessary.60
Moreover on Form DS-156, Application for Non-Immigrant Visa, Question 38 asks,
“Have you ever been afflicted with a communicable disease of public health significance
or a dangerous physical or mental disorder, or ever been a drug abuser or addict?” Since
HIV is considered a “communicable disease of public health significance,” if an applicant
knowingly answers this question falsely, he could be found to have committed
immigration fraud.
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