On the Positive Side: Using a Foreign National's HIV-Positive Status in Support of an Application to Remain in the United States, Victoria Neilson, 19 AIDS & Public Policy Journal 45 (2004)

Research and Journal Articles

This article discusses two cases where a foreign national's HIV-positive status helped the individual to obtain lawful immigration status in the United States. Since 1987, the United States has maintained a discriminatory policy toward foreign nationals who are HIV positive that can only be waived in limited circumstances. In most instances, testing positive for HIV makes it difficult or impossible for a foreign national to obtain permanent residence in or even visit the United States. This article describes the parameters of immigration law as it applies to HIV-positive individuals, and focuses on two cases in which immigration judges granted legal status to foreign nationals because of their HIV-positive status. The article also calls for a change in the law to allow a greater number of foreign nationals, whose lives would be in jeopardy if they returned to their home countries, to remain lawfully in the United States, where they can obtain lifesaving medical treatment and become productive members of society.

It should be noted that the statutory ban prohibiting HIV-positive foreigners from entering the United States has since been repealed, and regulations removing HIV from the list of communicable diseases of public health significance were passed in November 2009. Thus, the HIV ban is no longer in effect as of January 4, 2010. For additional information, please see CHLP's Know Your Rights fact sheet on the lifting of the ban.