On September 15, 2009, the Associate Director of the USCIS Refugee, Asylum & International Operations Directorate, the Acting Associate of USCIS of Domestic Operations and the Acting Chief of the Office of Policy and Strategy issued a memorandum to USCIS officers for guidance on inadmissibility of claims and applications due to HIV infection.
The memorandum directs USCIS officers to hold in abeyance any waiver application and associated benefit request (such as adjustment of status or refugee), which would be denied under current law, if the only ground of inadmissibility is that the applicant has been diagnosed with HIV infection.It is not necessary to hold such a case, however, if the alien is eligible for a waiver of inadmissibility and USCIS determines that, as a matter of discretion, the waiver should be granted. This guidance is provided in response to the U.S. Department of Health and Human Services’ (HHS) publication on July 2, 2009, of a proposed rule to remove HIV from the list of communicable diseases of public health significance and is effective as of the date of this memo.
The guidance provided in the first memorandum on this issue, Public Law 110-293 and Inadmissibility due to HIV Infection, published on August 26, 2008, is rescinded as of the date of this second memorandum. On July 2,2009, HHS published a proposed amendment to the INA (42 CFR 34.2(b)) in the Federal Register at 74 Fed. Reg. 31798. The amendment proposes to remove HIV infection from the list of communicable diseases of public health significance. If the proposal is adopted as an interim or final rule, HIV infection will no longer make an alien inadmissible.
In light of the HHS proposed rule, USCIS will not deny any adjustment, refugee, or other benefit application if the sole ground of denial of the application would be based on inadmissibility due to HIV infection. Nor will USCIS deny any waiver application if the sole ground of inadmissibility is HIV infection. If the applicant's sole ground of inadmissibility is HIV infection, and the officer finds either that the alien does not qualify for a waiver, or that a waiver is not warranted as a matter of discretion, all written decisions should state that the case will be placed on hold and automatically re-examined by USCIS, pending the outcome of the rule. The hold is only for cases where the application would be approved, but for the HIV infection. If the applicant is inadmissible on other grounds unrelated to HIV infection, or ineligible for adjustment of status or refugee status for other reasons, USCIS officers should enumerate all applicable grounds of inadmissibility in the written decision, including HIV. Should the HHS rule be adopted as interim or final, additional guidance will be issued and the Adjudicator's Field Manual will be updated, accordingly.