Saturday, October 31, 2009

Advance Copy of the November 2, 2009 Final Rule Repealing the HIV Ban

Read it here. It becomes effective 60 days from publication, on January 1, 2010.
"As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration."
-Final Rule, submitted October 30, 2009 at 8:45 a.m. for publication on November 2, 2009. Kathleen Sebelius, Secretary, Health and Human Services.

Friday, October 30, 2009

President Obama Expected to Announce End to HIV Ban Today, OMB Has Approved Final Rule

Yesterday, the White House Office of Management and Budget approved the regulations (see screen capture below) issued by the U.S. Department of Health and Human Services that will end the HIV ban on immigrants and non-immigrants, only seven days after the final regulations were submitted for review. Also, yesterday Congress passed re-authorization of the Ryan White HIV/AIDS Treatment Extension Act, which provides funding for low-income people with HIV. Today at 11:50 a.m. the President will sign the bill into law in a ceremony in the White House Diplomatic Reception Room and is expected to use the opportunity to announce that the HIV ban has been brought to an end. (See previously, "Repeal of HIV Ban in Final Stages".)

Updated 12:15 p.m.: The President (photo above) just announced that the Final Rule will be published on Monday November 2. This means that the effective date will be just after the New Year. Here is a copy for your reading pleasure: Removal of Human Immunodeficiency Virus (HIV) infection from Definition of Communicable Disease of Public Health Significance (Filed with Federal Register October 30, 2009; Published November 2, 2009)

Thursday, October 29, 2009

Members of Congress Look to Restart Immigration Reform in Early 2010

Listen to NPR's interview with Illinois Congressman, Luis Gutierrez on October 27, 2009.

Tuesday, October 27, 2009

Diversity Visa "Green Card" Lottery Filing Period Ends November 30, 2009

This note is posted for informational purposes only and does not constitute legal advice.
Consult a qualified attorney before filing any documents with the Immigration Service or State Department, including an entry into the DV Lottery.

1. What is the Diversity Visa Lottery Program?

The Diversity Visa (DV) Lottery Program makes 55,000 immigrant visas ("green cards") available each year to nationals of countries which the U.S. considers to be under represented in U.S. immigration. Applicants from those countries not excluded may apply, whether they are currently residing outside the U.S. or inside the U.S.

2. Which countries are excluded from this year’s DV lottery?

For the current DV Lottery (DV 2011) natives of the following countries are not eligible to apply: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible. If you are a "native" of any of these countries, you cannot apply for the diversity visa lottery. Generally, a person is considered a "native" of the country in which he or she was born. There are some exceptions to this rule, so if you are not certain if you qualify, you should contact an attorney.

3. What are the requirements to qualify for the DV Lottery?

An applicant must come from an eligible country, have either a high school diploma, or two years of work experience within the last five years in an occupation that requires at least two years of training and be otherwise admissible.

4. Can I apply even if I’m in the U.S. without legal status ("undocumented")?

Under current law, a person who is in the U.S. without legal status who wins the DV lottery will not be permitted to apply for their residence from within the U.S. ("adjust status") unless they had some other legal permanent residence visa petition (family or employment based) filed before April 30, 2001. If you are undocumented and you receive a notice from DOS that you have won the DV lottery, the notice will instruct you to return to your country for processing. If you follow these instructions and leave the U.S., you will be subject to "overstay" bars of three years or ten years depending on the circumstances. Under current immigration law, anyone who has been unlawfully present in the U.S. for more than 180 days will be prohibited from returning to the U.S. for three years following departure. Anyone who has been unlawfully present in the U.S. for more than one year will be prohibited from returning for ten years following departure.

5. If I’m in the U.S. and undocumented should I apply?

Simply submitting an application to the DV Lottery does not in itself automatically trigger a deportation action against you, so entering the lottery if you are undocumented is not very risky. However, even if you are selected there is almost no chance you would be eligible for "adjustment of status" unless you are grandfathered under Section 245(i). If you are undocumented in the U.S. and thinking about applying for the DV lottery, you should consult with an experienced immigration attorney first.

6. I’m HIV positive. Can I apply?

For the first time in over 15 years, the answer to this question is pretty clearly, yes. Although the regulatory framework of the HIV ban is still in place, the administration has made it clear that it intends to end the ban by the end of 2009, possibly as soon as the end of October 2009. The Department of Health and Human Services has published proposed regulations seeking to remove HIV from its list of "communicable diseases of public health significance," and U.S. Citizenship and Immigration Services has put out a memo stating that it will not deny applications for legal permanent residence based solely on HIV-positive status; it will hold them until the final rule change. The final rule has been drafted and sent for approval to the Office of Management and Budget, and is expected to be published imminently. It is therefore most likely that long before the DV-2011 lottery winners are announced, the HIV ban on immigration will be history.

7. How will I know if I won?

A government computer will select at random individuals from among all qualified entries. They will be notified by mail and will be provided further instructions, including information on fees connected with immigration to the U.S. Those individuals NOT selected will NOT receive any notification. Applicants may also check the status of their lottery entry online at the DOS website to determine whether or not they have been selected. Please note that the DOS does NOT notify winners by email.

8. How do I apply?

Again this year the U.S. Department of State will only accept applications that are electronically filed at along with digital photographs. Applicants are strongly encouraged not to wait until the last week of the registration period to enter.

9. How much does the application cost?

There is no fee at the time the electronic application is filled out. Please note that the U.S. Government employs no outside consultants or private services to operate the DV program.

10. When is the registration period?

Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between 12:00PM EDT on October 2, 2009 and 12:00PM EST on November 30, 2009.

11. Can I submit more than one application?

Anyone who submits more than one application will be disqualified automatically.

12. Should I hire a representative, pay a fee or use an online service to file for the DV lottery?

Other than a qualified, reputable attorney to advise you on this process, probably not. Most websites or services that offer to help applicants fill out their DV lottery application are not reputable and are not necessary. The online DV lottery application is very simple, and requires no fee.

Monday, October 26, 2009

Repeal of HIV Ban In Final Stages

The cruel and unnecessary ban on HIV+ immigrants and non-immigrants is a tiny step away from being history, as of this past Thursday. This past summer, the U.S. Health and Human Services published proposed regulations to bring them in line with the Congressional repeal of the HIV ban in the last weeks of the Bush presidency in December 2008. With these changes, HIV will no longer be considered a "communicable disease of public health significance" and will no longer be a grounds of "inadmissibility" as it has been for more than 20 years for non-immigrants and immigrants. The comment period for the proposed regulations ended on August 17. Activists and attorneys, non-citizens and judges, and even the United States Citizenship and Immigration Services itself, optimistically awaited the Final Rule. Only a month after the proposed rule was published, USCIS announced that it would not longer deny cases where the sole reason for the denial is HIV, but instead will hold those cases in abeyance until the new policy is implemented. (See USCIS memo here.)

We learned today that HHS sent the "final rule" to Office of Management and Budget on October 22 for review. Review must occur within 60 days (by December 21), meaning the HIV ban will be gone by the end of the year, and perhaps even sooner. Immigration Equality a lead advocacy group on this issue predicts that OMB could announce approval of the Final Rule as soon as Wednesday October 28.

For an excellent summary of the history of the HIV ban before the August 17 publication of HHS's proposed regulations, see "U.S. HIV Travel and Immigration Ban is Going... Going... Almost Gone," by Laura Belmonte, Associate Professor of History and Director of American Studies at Oklahoma State University.