William Yates, USCIS Associate Director of Operations recently issued a memorandum
clarifying USCIS policy on the eligibility for discretionary waivers of inadmissibility
due to HIV infection for K and V nonimmigrants.
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (Act) states that
any alien who is diagnosed to have a communicable disease of public health significance
is inadmissible. The etiological agent for acquired immune deficiency syndrome
(AIDS), or HIV infection, is specifically included in this provision. Section
212(g)(1)(A) of the Act further provides, in pertinent part, that the Secretary
of the Department of Homeland Security (DHS) may waive such inadmissibility in
the case of an alien who is the spouse or child of a United States citizen or
lawful permanent resident.
As a matter of long-standing policy, DHS has, as a matter of discretion, considered
applications for waiver of inadmissibility due to HIV infection for immigrant
visa applicants and adjustment of status applicants. Through a series of policy
memoranda, DHS has also articulated the limited circumstances under which it would
consider an application by a nonimmigrant for such a waiver. As stated in the
most recent memorandum dated October 17, 2002, DHS will consider applications
for a waiver of inadmissibility due to HIV infection for nonimmigrants under two
circumstances. First, CIS will consider individual waivers for nonimmigrants who
seek to enter the United States for stays of 30 days or less for specific purposes
that are considered humanitarian or public interest reasons. Second, CIS will
consider blanket waivers for nonimmigrants who are attendees of certain designated
international events held in the United States.
On December 21, 2000, the Legal Immigration Family Equity (LIFE) Act of 2000,
Public Law 106-553, was enacted. The LIFE Act created, in part, special nonimmigrant
K classifications for the spouse of a U.S. citizen (K-3) who is the beneficiary
of a petition for alien relative classification and any dependent children (K-4).
The LIFE Act also created the V nonimmigrant classification for certain spouses
(V-1) of lawful permanent residents who are the beneficiary of a petition for
alien relative classification and any dependent children (V-2 and V-3). These
aliens are admitted to the United States as nonimmigrants for the purpose of awaiting
petition approval, visa availability, and adjustment of status. The Act has long
provided for nonimmigrant K classification for the fiancé(e) of a U.S.
citizen (K-1) and any dependent children (K-2).
Eligibility for K or V nonimmigrant classification is based on the intention to
immigrate as the spouse or child of a United States citizen or lawful permanent
resident. As intending immigrants, they are required to complete a medical examination
to establish admissibility under section 212(a)(1) of the Act. Because a waiver
of inadmissibility is available at the time of adjustment of status, it is determined
that K and V nonimmigrants will be exceptions to the above noted HIV waiver policy.
Specifically, K and V nonimmigrants will be eligible to apply for a waiver of
inadmissibility due to HIV infection in conjunction with their nonimmigrant visa
application, or change of status application in the case of certain V nonimmigrants,
regardless of their intent to remain in the United States for more than 30 days.
Accordingly, an alien applying for a K-1 visa as the fiancé(e) of a United
States citizen, or the child of such an alien applying for a K-2 visa, may apply
for a waiver of inadmissibility due to HIV infection under section 212(d)(3)(A)
of the Act under standing procedures of that provision. An alien granted a waiver
of inadmissibility as a nonimmigrant under section 212(d)(3)(A) will be required
to reapply under section 212(g)(1)(A) at the time of adjustment of status.
An alien applying for a K-3 visa as the spouse of a United States citizen, or
the child of such an alien applying for a K-4 visa, may apply for a waiver of
inadmissibility under section 212(g)(1)(A) of the Act by filing Form I-601 with
the DHS. An alien applying for a V-1 visa, or for change of status to V-1 classification,
or the child of such an alien applying for a V-2 or V-3 visa or for change of
status to V-2 or V-3 classification, may apply for a waiver of inadmissibility
under section 212(g)(1)(A) of the Act by filing Form I-601 with the DHS.
DHS will consider such waiver applications under the same eligibility criteria
applicable to immigrant visa and adjustment of status applications as set forth
in Chapter 41.3(a) of the AFM. Those criteria include establishing that the alien
has received counseling/education necessary to prevent the spread of the infection,
the alien has made arrangements for medical care in the United States and the
cost will not be borne by any government agency without the consent of that agency.
Waiver applications under section 212(g)(1)(A) also must be presented to the Center
for Disease Control and Prevention (CDC) for advisory review. DHS, in consultation
with the CDC, may set any additional terms and conditions on the approval of such
a waiver as may be deemed appropriate. Failure to abide by the terms and conditions
of a waiver granted under section 212(g)(1) of the Act will render the alien removable
pursuant to the terms of section 37(a)(1)(c)(ii) of the Act.
For complete USCIS Memorandum click
here.
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