QUESTION: I am HIV positive and I have an application pending with USCIS. How will the rule that removes HIV as a ground of inadmissibility affect my application?
Answer: The final rule just went into effect on January 4, 2010. There is no more HIV Inadmissibility.
On or after Jan. 4, 2010, when HIV is no longer a medical ground of inadmissibility, all cases that were held in abeyance because of HIV infection will be adjudicated according to the new law.
Furthermore, HIV infection will no longer be a medical ground of inadmissibility for any application for immigration benefits pending on or after Jan. 4, 2010.
Question: I am HIV positive and I am not eligible for a waiver. Does this change mean I can enter the United States or be granted adjustment of status without a waiver?
Answer: Beginning Jan. 4, 2010, you will not be required to file a waiver just because you are HIV positive. If your case is pending on or after Jan. 4, 2010, a waiver of inadmissibility for HIV is not required, even though your medical examination showed that you have HIV infection. Civil surgeons will not test for HIV after Jan. 4, 2010.
Question: How are panel physicians, who conduct medical examination of foreign nationals planning to enter the United States, notified of this change?
Answer: The US Department of State (DOS) regulates panel physicians. For more information about notification of panel physicians, please contact DOS. Contact information is on DOS’ Web site at www.state.gov.
Question: I know someone else who had his application denied because he was HIV positive. Can he file a motion to reopen or reconsider because a waiver is no longer needed?
Answer: In general, a motion to reopen or reconsider must be filed within 30 days of the final adjudication. However, if your application was denied solely based on HIV infection, on or after July 2, 2009, the date of the proposed HHS rule, USCIS will waive the 30 day deadline. USCIS will accept the filing of your motion to reopen or reconsider along with the filing fee.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the US Supreme Court and the 1st through 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, non immigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us
( Published January 16, 2010 in Asian Journal Los Angeles p. C2 )
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