Written by Troy Elder Friday, 11 March 2011 00:00
People often ask me if it's possible to immigrate if you have HIV. Immigration law is extremely complex and changes often, including in matters related to immigrant health. But for once, good news: there is no longer an HIV ban for travel or immigrating to the United States!
For more than 15 years, there was a prohibition on travel and residency for HIV-positive noncitizens. For those seeking permanent residency (often called a “green card”), a narrow exception was made, but one that was all but impossible for gays to qualify for.
During the ban, the only way for people living with HIV (even asymptomatically) to qualify for the exception was to prove that they had what was called a “qualifying relative” – which in most cases was a wife! Obviously, this requirement largely precluded gay Latinos with HIV from immigrating legally and honestly. I've worked with many HIV-positive gays – often in good general health and who qualified for a work visa or other way to stay in the country legally. But the ban effectively kept them out, unless they opted to marry a woman in a deceitful and fraudulent sham marriage.
But as of January 10, 2010, HIV is no longer counted as a “communicable disease of public health significance.” This change was the result of years of struggle by gay activists and others.
So what does it mean? For visitors, such as tourists with visas, students, workers on visas and others with HIV/AIDS, you can finally give honest answers about your status to immigration questions upon entry. And you won't have to hide your HIV meds any more.
For those seeking legal residency, there is no longer a required HIV test when applying for a green card. There is no longer a fee of more than $500 to seek the special exception for HIV-positive applicants. And no need to marry a woman to qualify for it.
But watch out: the elimination of the HIV ban does not soften the rules for immigrating legally to this country. Generally, legal immigration takes one of three forms: through “family” (though sadly, immigration law still does not recognize gay marriage, even in the six states where it is legal); via a (mostly white-collar and very limited) work visa; or in special circumstances (such as political asylum; see my column in the February 2010 issue of GL). In other words, even after the recent change, people living with HIV still need to “fit” within established immigration categories – but simply may now do so without such an enormous barrier.
At the end of the day, for gay Latinos living with HIV, immigrating to the United States remains a difficult proposition, for same reasons it is hard for gays (and for Latinos) in general: an immigration system that all sides acknowledge is broken, and one that discriminates against those who love someone of the same gender. But the change is promising.