Note: It is important to remember that HIV waivers are fairly complex.  This will provide a very brief overview of the HIV waiver.  However, if you are seeking to file for this waiver, it is highly recommended that you contact an immigration attorney or an accredited representative.

What are HIV waivers?

HIV waivers are available for those individuals who are adjusting their status to that of a legal permanent resident and may be found inadmissible for public health reasons, namely for having HIV.  These waivers are discretionary and there are several criteria, which must be met by the applicant.

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA) provides for the exclusion of any alien who has a communicable disease of public health significance.   The discretionary waiver for this ground of inadmissibility is found in Section 212(g) of the INA.  The applicant must establish that:

(1)   The Danger to the public health of the United States upon admission is minimal;

(2)   The possibility of the spread of infection upon admission is minimal;

(3)   And there will be no cost incurred to a government agency of the United States without the prior consent of that agency

What types of evidence can I submit to meet these criteria?

v     Evidence that the applicant has arranged for medical treatment in the US;

v     The applicant's awareness of the nature and severity of his medical condition;

v     The applicant's willingness to attend educational seminars and counseling sessions;

v     The applicant's knowledge of the modes of transmission of the disease; and

v     Formal consent by a government agency to provide medical treatment to the applicant.

Immigration Officials also make a separate finding to see if you will be a "public charge" which is essentially an individual who cannot support himself and will become dependent upon governmental assistance.  Factors for determining the public charge issue are:

1)      Whether the applicant has an offer of employment in the US;

2)      Whether the applicant is able to undertake the offered employment, as evidenced by a physician's assessment of the alien's medical condition;

3)      The applicant's own financial resources;

4)      The financial resources of the applicant's family embers if he depends on them for support;

5)      Whether the applicant has, or is able to obtain at affordable cost, medical insurance covering all or part of the HIV related expense;

6)      Whether the applicant is able to meet basic living expenses, in addition to those medical costs associated with HIV.

Note: The acceptance of publicly funded medical treatment for HIV infection does not automatically render the applicant excludable under public charge the provision.  The applicant must submit evidence showing that such treatment is available and that the appropriate government agency has consented to the treatment.

****It is important to note that this waiver is discretionary.  You must try to meet all of the above listed criteria to the best of your ability by presenting as much evidence as possible.  All decisions on these cases are done on a case-by-case basis.  The more evidence you have to show that you understand the risk of HIV and the necessary measures to ensure public safety, and are capable to supporting your self will work to increase your chances of being granted this waiver.