Waiver Requirements for US Visa Applicants with HIV/AIDS
We specialize in visa denial and exclusion cases, particularly those pertaining to persons with communicable illnesses. While the FAQ below provides general information about waivers available to persons living with HIV/AIDS, US visa applicants with this medical condition are advised to speak with an attorney before proceeding with their US visa application.
Do US immigration laws prohibit persons with HIV/AIDS from entering the US?
In general, US immigration laws bar foreign nationals with HIV and certain other contagious medical conditions "of public health significance" from coming to the US. However, in certain circumstances, it is possible to request a waiver that would permit a visa and entry into the US subject to conditions.
Are all persons with HIV/AIDS applying for a US visa eligible for a waiver?
There are two basic types of US visas: immigrant and non-immigrant. The USCIS sets different requirements for eligibility for an HIV waiver based on the type of visa for which the applicant is applying.
Immigrant visa applicants who are the immediate relative of an American citizen (or a permanent resident) or who can claim asylum may be eligible for an HIV waiver on the basis of "family unity, humanitarian purposes or public interest" concerns. K (fiancee or spouse) non-immigrant visa applicants may potentially also be eligible for a waiver based on the general waiver provision of promoting family unity.
Non-immigrant visa applicants who plan to stay in the USA for less than 30 days or who are entering the US for a designated event, such as an HIV/AIDS conference, for which the USCIS has issued a blanket waiver may be eligible for a waiver.
How can a visa applicant obtain a waiver on the basis of family unity?
Waivers are sometimes granted to the immediate family members of US citizens on the basis of promoting family unity. Applicants for a waiver generally also need to provide evidence that they have funds to cover any medical expenses in the US and that their admission will not create a public health risk. This may involve documentary evidence from physicians, government officials and insurance agencies.
When can a visa applicant who is the immediate relative of a US citizen file for a waiver?
The US citizen must first submit a petition to the USCIS office with jurisdiction over his or her residence. After the petition is proved, the foreign national fiancee will be required to submit an application with supporting documents including the results of a medical to the consular processing at the Embassy. Subsequently a denial letter may be issued with specific instructions regarding the availability and requirements of applying for a waiver.
How do waiver applications evaluated?
Applicants must first have grounds for a waiver, such as the promotion of family unity. Consular officers generally also consider whether applicants living with HIV/AIDS meet the following criteria when evaluating waiver applications:
The danger to public health in the US created by the admission of the applicant is minimal (Generally a letter from the applicant's physician stating the applicant's health is stable and the applicant understands how HIV is spread is provided by the applicant)
The possibility of the spread of HIV by admission is minimal (Generally the applicant provides a sworn statement that he or she understands how HIV is spread and does not engage in high risk behavior)
No US government agency will incur an expense because of the applicants' admission (The applicant generally needs proof that she or he has private health insurance that will cover any medical expenses incurred while in the US).
Read more about Waivers of Ineligibility for US visas.