Tuesday, December 01, 2009

USCIS Will Reopen Cases Recently Denied Solely Because of HIV Status, New Guidelines are Issued for Post-Repeal Adjudications

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum last week establishing new procedures for adjudicating applications in advance of the effective date of the final regulations repealing the HIV ban.  That ban, which rendered inadmissible all HIV+ non-immigrants and would-be immigrants unless they qualified for a narrow waiver, had been in effect since the 1980s and had been widely condemned by human rights and public health advocates. Effective January 4, 2010 HIV status will no longer be a bar admission pursuant section 212(a)(1)(A)(i) of the Immigration and Nationality Act. (See "Pall Lifts Along With AIDS Travel Ban," Chicago Tribune, December 1, 2009.)
Since September 15, 2009, USCIS has held in abeyance the adjudication of all applications for adjustment of status to permanent residence where the applicant is HIV-positive but does not qualify for a waiver of inadmissibility. Anticipating the imminent publication of the final rule, USCIS favored delaying adjudication to avoid denying applications and facing unnecessary motions for reopening and reconsideration later. Public Law 110-293, 42 CFR 34.2(b) Inadmissibility Due to Human Immunodeficiency Virus (HIV) Infection.”
Additionally, USCIS will administratively close any pending waivers of inadmissibility because of HIV status on January 4, 2010, paving the way for final adjudication of those applications for adjustment of status. These cases, along with any other cases held in abeyance because of HIV status, will then be adjudicated without HIV as a bar to admissibility.
Importantly, the new guidance from USCIS waives the 30-day filing deadline for motions to reopen or reconsider for foreign nationals who have had an application for adjustment of status to permanent residence denied since July 2, 2009 – the day Health and Human Services published the proposed rule removing HIV from the list of "communicable disease[s] of public health significance" – where the only grounds for denial was HIV status. This waiver of the 30-day filing deadline invites those applicants who received denials between July 2, 2009 and September 15, 2009 because of their HIV status to have their cases reconsidered by USCIS. Such motions will be granted and final adjudication of the cases will be made after January 4, 2010.
The announcement from USCIS came just one week before World AIDS Day 2009, the theme of which is “universal access and human rights.”
Observers noted yesterday that the repeal of the HIV ban has made possible a related development. In 2012 the United States will be host to the 19th biennial International AIDS Conference. Secretary of State Hillary Clinton said Monday that the U.S. will host the global AIDS conference to show its commitment to fighting the disease. "Today, I am pleased to announce that with the repeal of the ban, the Geneva-based International AIDS Society will hold the 2012 International AIDS conference in Washington, D.C.," said Hillary Clinton. Clinton said the conference will bring together an estimated 30,000 researchers, policymakers and activists from around the world. (The Hill)  The International AIDS Society conference has not been held in the United States since 1990 because of the HIV ban.  (See video of Secretary Clinton's announcement.)

Today, on World AIDS Day, we remember the millions of men, women and children impacted by HIV and AIDS.  We honor the many who have valiantly struggled to end discrimination on the basis of HIV status and welcome those who have sought safe haven in the United States in flight from persecution.  We remember those who are no longer with us and continue to support efforts to expand access to medical treatment and end the stigma that often stands in the way of education and prevention efforts.

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