HIV and Medical Waivers in the US immigration context

The US immigration process requires that every applicant for Lawful Permanent Residency complete a medical examination. This medical examination consists of a set of routine vaccinations for diseases such as mumps, measles, rubella, polio, tetanus, diphtheria, influenza, hepatitis B, and any other vaccine for preventable diseases of public health significance. In addition, the medical examination consists of a physical and tests for the human immunodeficiency virus or (HIV) and Tuberculosis or (TB).

Anyone who does not have the required vaccinations or is positive for a communicable disease such as TB or HIV or who has a physical or mental disorder or exhibits behavior associated with a physical or mental disorder including but not limited to drug addiction, schizophrenia, bipolar or manic disorders who may pose a threat to the property, safety, welfare of the individual or another person is inadmissible to the United States according to the Immigration and Nationality Act (INA) Section 212(a). There are some exceptions, however. Children under the age of ten (10) who are adopted by US citizens are exempt from vaccination requirements; however, the adoptive parent must provide an affidavit stating that the child will have the vaccinations completed within 30 days of arrival to the United States.

For those applicants who are HIV+, the United States Citizenship & Immigration Services (US CIS) will also allow a waiver of the rules. This waiver, however, has specific conditions that must be met in order for the adjustment of status application to go forward. The waiver application is to be submitted simultaneously with the application for adjustment of status or when US CIS requests it. The HIV+ individual must provide documentation that s/he is aware that they have the disease and know the modes of transmission. They must provide an affidavit and documentation to show they are currently or will (if outside the United States at a consular post) receive treatment for the disease or will be under a doctor’s care and will not willingly or knowingly transmit the disease. Also, s/he must explain how s/he will pay for the treatment of the disease or what payment arrangement has been made with a clinic or facility if the clinic or facility agrees to provide treatment free of cost to the individual. The last hurdle requires the applicant for adjustment of status to provide documentation as to what hardships the sponsoring US citizen spouse, child, or parent would suffer if s/he were denied adjustment of status or admission to the United States. This requires the sponsor to prepare as much evidence as possible to demonstrate how integral or essential the intending immigrant is to that sponsor or family member’s life.

The US CIS has a duty when reviewing the waiver application to submit the information to the US Center for Disease Control (CDC) and have a CDC official sign off on the application before they can approve the application for adjustment of status. Once all information about the HIV+ individual is placed in the CDC database and provided there are no other obstacles to the adjustment process, the HIV+ applicant can receive Lawful Permanent Resident Status and a Green Card.

Another process that allows a waiver based on medical condition or disability is the process of naturalization. Individuals who may have a medical condition or disability that prevents them from being able to take and pass the civics and US political history test and/or the

English literacy test may obtain US citizenship status as long as they comprehend the oath of allegiance. These individuals, who may not be literate in English, or who will fail the civics or history portion of the naturalization test may obtain a medical waiver. The naturalization waiver requires the applicant to provide documentation prepared by an attending medical doctor (MD) or doctor of osteopathy (OD), psychologist, therapist, or other licensed medical professional explaining the disability, impairment, or medical condition in plain English terms. The licensed medical professional must also explain HOW that medical condition, disability, or impairment affects or prohibits the applicant from taking the civic or history test, or attaining literacy in English. If the medical professional uses language that is not easily understood by a layperson or Immigration Officer, the medical waiver will be denied and the underlying naturalization petition also denied.

The medical or disability waiver must be submitted simultaneously with the initial filing of the petition for naturalization. The applicant cannot subsequently submit the waiver once at the naturalization interview. If a naturalization application is denied because the applicant fails the written or oral civics and history test or is not literate in English and did not file a waiver with his or her initial application, then the applicant will have to re-apply and submit the waiver application with the new filing. Mature individuals, who may suffer from any number of medical conditions including stroke or dementia, must emphasize to their doctors that the explanation or connection between the disability, medical condition, or impairment, AND the inability to successfully pass the oral or written test or attain literacy because of memory loss, for example, must be clear. The licensed medical professional must specifically explain what caused the memory loss and by what process or methods the memory loss impedes retention of information and thus limits the applicant’s ability to successfully become literate in English or successfully take a written or oral civic and history test.

The English literacy requirement is customarily waived for mature individuals if they are fifty (50) years of age or older and have been a Lawful Permanent Resident for at least twenty (20) years or if they are above the age of fifty-five (55) and have lived in the United States as a Lawful Permanent Resident for at least fifteen (15) years. The individuals that fall into this category can take the written or oral examination in their language of origin. Exemptions from the civics or history test in addition to the English literacy test also occur for those individuals age sixty-five (65) and older who have lived in the United States as permanent residents for at least 20 years and who may not have a disability, impairment or medical condition impeding success during the naturalization process. Thus, although there are restrictions on who may become a Lawful Permanent Resident or naturalized citizen, the US CIS will entertain the submission of certain waivers to make accessible the path to legalization and citizenship.

Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to [email protected]

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