February 25, 2008: Adjustment Of Status And HIV Waiver

Adjustment Of Status And HIV Waiver

I just got married and I have to apply for adjustment of status. What forms I have to fill out? If I do not want to do the HIV test, can I file for a waiver? I don’t want to know the result. Thank you for your response.
— Anonymous

A sealed medical examination is required to be submitted along with the adjustment of status package. This package includes Form I-130, Petition for Alien Relative, in some instances Form I-131, Application for Travel Document, Form I-485, Application for Adjustment of Status, Form I-765, Application for Employment Authorization, Form G-325A, Biographic information, and Form I-864, Affidavit of Support, with all the appropriate supporting documentation and filing fees. The sealed medical package will contain Form I-693 and Supplement, both of which will be provided by the medical examiner at the time of the doctor visit.

All applicants must visit a Designated Civil Surgeon that has been approved by the United States Citizenship and Immigration Service (USCIS). A list of Designated Civil Surgeons in your local area can be found through a search of the civil surgeons at http://www.uscis.gov/. The purpose of the medical exam is to see if you have certain health conditions that may require additional attention. The health conditions that are tested for include suspected mental conditions, tuberculosis, Venereal Diseases, and humanimmuno-deficiency virus (HIV). Applicants who have records of previous immunizations should present them to the doctor.

Pursuant to Immigration and Nationality Act (INA) §212(a)(1)(A)(i), any foreign national with a “communicable disease of public health significance,” is “inadmissible.” This includes HIV. This means that an HIV-positive applicant can only become a lawful permanent resident if s/he qualifies for a waiver that will “waive” his or her grounds of inadmissibility. This is because all adjustment of status applicants must prove that they are admissible to the United States.

If an individual is HIV-positive and files a waiver, the waiver must demonstrate that the danger to the public health of the United States created by his or her admission to the United States is minimal, that the possibility that the spread of the infection created by his or her admission to the United States is minimal, and prove that there will be no cost incurred by any level of government agency of the United States without prior consent of that agency. The waiver should also include information on how the spouse will suffer hardship if the applicant is unable to become a permanent resident and is deemed inadmissible. This waiver is filed on Form I-601. Before you file your adjustment of status package, you should consult with an immigration attorney to discuss your options and filing the HIV waiver.

Evan Shane and Michael Shane, Immigration Attorneys