INS Memo on HIV Waivers

Immigrant Waivers for Aliens Found Excludable Under Section 212(a)(1)(A)(i) of the Immigration and Nationality Act Due to HIV Infection

SEP 6 1995 HQ 212.3-P

All District Directors (including foreign) Office of
All Officers-in-Charge (including foreign) Programs
All Regional Supervisory Examiners
All Service Center Directors
All Staff Assistants for Field Operations
Deputy Director, IOA, Glynco, Georgia
Deputy Director, IOA, Artesia, New Mexico

The purpose of this memorandum is to restate the Service's position regarding immigrants found to be statutorily excludable under section 212(a)(1)(A)(i) of the Immigration and Nationality Act (Act) because of infection with HIV. For the reason cited herein, all decisions on immigrant waiver applications involving HIV infection no longer need to be certified to the Deputy Commissioner, Attention: Associate Commissioner, Examinations, in accordance with 8 C.F.R. ' 103.4. By removing the certificate requirement, the Service seeks to eliminate unnecessary levels of review, and enhance the overall efficiency of the waiver process. The Service also seeks to ensure that all immigrants excludable under section 212(a)(1)(A)(i) of the Act relating to a communicable disease of public significance who are eligible for a waiver are treated equally, regardless of the medical condition that renders them excludable. In addition to explaining its waiver policy, the Service also wishes to provide clear guidance to Service Officers on assessing whether an applicant found excludable under section 212(a)((1)(A)(i) of the Act is excludable under section 212(a)(4) of the Act as "an alien likely to become a public charge."

Other than discontinuing automatic certification on all decisions involving immigrant HIV waivers, this memorandum restates and explains in more detail the policy established in 1987. The instructions provided herein do not in any way alter the substantive criteria for granting waivers to aliens found inadmissible under section 212(a)(1)(A)(i) of the Act due to HIV infection; nor do they in any way restrict or alter waiver eligibility or the discretion accorded to the Service.

Furthermore, Service officers are not precluded from certifying decisions on unusually complex cases or cases involving novel areas of law that have not yet been addressed, as provided in 8 C.F.R. ' 103.4. Moreover, the guidance provided on determining public charge does not reflect any change in Service policy; the criteria are merely discussed in more detail to ensure fair and consistent treatment of all applications.

The instructions contained in the memorandum supersede earlier instructions provided to the field, and remain in effect pending publication and implementation of the revised exclusion regulations. For further information, please contact Sophia Cox, Sr. Immigration Examiner, 202-514-5014.

I. Overview of Service Policy on Exclusion Under Section 212(a)(1)(A)(i) of the Act (Formerly Section 212(a)(6) of the Act) Due to HIV Infection and Automatic Certification of All Decisions Concerning HIV Waiver Cases

1. Service Policy The Service's basic position on the statutory inadmissibility of aliens infected with the HIV virus was first stated in a Central Office telegram dated July 6, 1987, and was restated in several subsequent telegrams implementing the Immigration Act of 1990 (IMMACT), which became effective on June 1, 1991. Decisions on waiver applications remain discretionary, and must be adjudicated only after a careful review of all positive and negative factors.

Section 212(a)(1)(A)(i) of the Act provides for the exclusion of any alien who has been determined, in accordance with regulations prescribed by the Secretary of Health and Human Services, to have a communicable disease of public health significance. The public Health Service (PHS) is responsible for defining communicable diseases of public health significance (formerly designated as dangerous contagious diseases prior to the implementation of IMMACT). PHS first amended its list of dangerous contagious diseases in 1987 to include infection with HIV, in response to its own proposed rule and a clear statutory directive from Congress. Subsequently, the National Institutes of Health Revitalization Act of 1993, which became effective on July 10, 1993, amended section 212(a)(1)(A)(i) of the Act to mandate that communicable diseases of public health significance now include "infection with the etiologic agent for acquired immune deficiency syndrome." Accordingly, aliens infected with the HIV virus continue to be excludable unless they are eligible to receive a discretionary waiver.

Section 212(g) of the Act provides for the issuance of immigrant waivers on a discretionary basis to aliens found inadmissible under section 212(a)(1)(A)(i) of the Act. To qualify, the alien must: (1) be the spouse, unmarried son or daughter or the minor unmarried lawfully adopted child or a U.S. citizen or of an alien who has been issued an immigrant visa; or (2) have a U.S. citizen or lawful permanent resident son or daughter. In addition, the refugee, legalization and SAW programs provide discretionary waivers for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

Applicants found excludable under section 212(a)(1)(A)(i) of the Act as having HIV, a communicable disease of public health significance, also are potentially excludable under the public charge provisions of section 212(a)(4) of the Act. Section 212(a)(4) of the Act provides that an alien is excludable if he or she is likely to become a public charge at any time. The public charge determination is made by the Service when an individual is applying for adjustment of status or at the time of admission into the United States. When the individual is applying for a visa abroad, the public charge determination is made by the consular officer. There is no statutory waiver of inadmissibility for aliens found excludable under the public charge provision. The public charge provisions do not apply to refugees (See section II, C-2, below).

PHS has determined that HIV infection gives rise to the possibility that the applicant will develop AIDS and that he or she will eventually require hospitalization or other type of medical care at some point in the future. Consequently, those who qualify for a discretionary waiver of excludability for HIV infection must also establish that the burden of supporting them during the course of their illness will not rest on the public. According to PHS, the average cost of medical treatment for an HIV-infected person through the course of the illness is approximately U.S. $85,500. Examiners should note that HIV infection does not automatically result in a finding that an applicant is likely to become a public charge; however, in reviewing each case, a reasonable calculation of the applicant's future ability to pay the expected costs of the illness should be made. In addition to the medical expenses, a reasonable calculation of the applicant's ability to meet basic living expenses also should be made.

2. Automatic Certification

Under 8 C.F.R. ' 103.4, certification of decisions to the Deputy Commissioner, Attention: Associate Commissioner, Examinations, permits review of any case or class or cases to another Service official for a decision when an unusually complex or novel issue of law or fact is involved. Under the former section 212(a)(6) of the Act, aliens who had a "dangerous contagious disease" were excludable. After HIV infection was added to the list of "dangerous contagious diseases," the Service formulated a policy that would permit nonimmigrants to seek waivers if certain condition were met. In addition, aliens seeking immigrant status as an asylee under section 209 of the Act, legalization under section 245A of the Act, or status as a special agricultural worker under section 210 of the Act, who were found inadmissible under the former section 212(a)(6) of the Act because of HIV infection, could seek to have that ground of inadmissibility waived through the broad discretionary authority accorded to Service officers under sections 207, 209, 245A and 210 of the Act. Because such waivers involved novel issues, the Service administratively decided that all decisions should be certified pursuant to 8 C.F.R. ' 103.4.

As a result of the Immigration Act of 1990 (IMMACT 90), "dangerous contagious diseases" were redesignated and redefined under section 212(a)(1)(A)(i) of the Act as "communicable diseases of public health significance," and immigrant waivers were specifically authorized under section 212(g) of the Act. Refugees/asylees, legalization applicants and special agricultural workers remained eligible to seek waivers under the broader discretion provided to them under their respective sections of law. When IMMACT 90 took effect, the Service continued automatic certification of decisions on immigrant HIV waivers, because case law was still evolving.

During the past several years, a broad range of decisions on waiver applications involving HIV infection have been reviewed and certified in accordance with 8 C.F.R. ' 103.4. These cases tend to follow a general fact pattern. Public charge under section 212(a)(4) is also addressed in many of these decisions. Copies of cases representing the range of issues considered through the certification process are attached for ready reference. While these cases may not be cited as precedent decisions, they do provide a fair representation of the issues addressed to date, and serve as a solid framework for fair and comprehensive adjudication.

Therefore, because (a) an application for a waiver of section 212(a)(1)(A)(i) of the Act relating to medical ineligibility based on HIV infection is no longer a novel area of law; (b) numerous cases have been decided and all tend to fall within general fact patterns; and (c) Service officers have been provided with comprehensive instructions and samples of decisions that fall within these general fact patterns, the Service has determined that it is no longer necessary to certify decisions in accordance with prior instructions.

II. Guidelines for Adjudicating Discretionary Waiver Applications and Determining Public Charge

A. Applications for Adjustment of Status in the United States Under Section 245 of the Act

1. Discretionary 212(g) Waiver of Excludability

If a section 245 adjustment of status applicant is found excludable under section 212(a)(1)(A)(i) of the Act on account of HIV infection and he or she submits documentation establishing the requisite family relationship specified under section 212(g) of the Act, examiners then need to consider the relevant discretionary factors to determine whether the waiver should be granted. Consistent with established policy, the discretion of the Attorney General will not be used in these cases unless the applicant can also establish that: (1) the danger to the public health of the United States created by his or her admission is minimal; (2) the possibility of the spread of the infection created by his or her admission to the United States is minimal; and (3) there will be no cost incurred by any level of government agency of the United States without the prior consent of that agency.

Examples of the evidence considered sufficient to meet the discretionary criteria include, but are not limited to: (a) evidence that the applicant has arranged for medical treatment in the United States; (b) the applicant's awareness of the nature and severity of his or her medical condition; (c) the applicant's willingness to attend educational seminars and counseling sessions; (d) the applicant's knowledge of the modes of transmission of the disease; and (e) formal consent by a U.S. government agency to provide medical treatment to the applicant. In refugee cases, proof that a hospital, research organization, or other types of facility will provide care at no cost to the U.S. government, or proof of private insurance is also acceptable.

Examiners should make it clear in their decisions that a separate finding on the ground of public charge will be made. Although both findings (eligibility for a waiver under section 212(g) of the Act and excludability under section 212(a)(4) relating to public charge) may be contained in the same decision, they should be written up as separate and distinct adjudications to show that each ground of inadmissibility was reviewed and considered on its own merits. (Those who filed adjustment of status applications in accordance with the provisions of the Cuban-Haitian Adjustment Act during the statutory filing period, and whose applications are still pending, are eligible for a section 212(g) waiver of excludability if the statutory and discretionary criteria described above are met).

2. Determining Public Charge

Among some of the factors to consider when making a public charge determination are: (a) whether the applicant has an offer of employment in the United States; (b) whether the applicant is able to undertake the offered employment, as evidenced by a physician's assessment of his or her current medical condition; (c) the applicant's own financial resources; (d) the financial resources of the applicant's family members, if the applicant depends on family for his or her support; (e) whether the applicant has or is able to obtain, at an affordable cost, medical insurance covering all or part of the HIV-related expenses; and (f) whether the applicant is able to meet basic living expenses, in addition to those medical costs associated with HIV.

Examiners should note that publicly-funded medical treatment for HIV infection does not automatically render the applicant excludable under the public charge provision. If the applicant has received or intends to receive HIV-related treatment at a government-financed facility, the applicant must submit evidence that such treatment is available and that the appropriate government agency has consented to the treatment.

B. Applicants for an Immigrant Visa at a U.S. Consulate Abroad

Because section 212(a)(4) of the Act provides that consular officers are responsible for determining public charge when an individual applies for a visa abroad, Immigration officers at overseas offices should limit their adjudication strictly to the applicant's eligibility to receive a discretionary waiver of excludability under section 212(g) of the Act. If the requisite family relationship specified under section 212 (g) of the Act has been established and the discretionary criteria described above have been met, the waiver should be approved. The examiner's decision should clearly state that the consular officer will make a separate determination on whether the alien is likely to become a public charge.

C. Refugees, Legalization and SAW

1. Discretionary Waivers of Excludability

The exclusion ground under section 212(a)(1)(A)(i) of the Act relating to a communicable disease or public health significance applies to all applicants for adjustment of status under section 245A (legalization), section 210 (SAWs) and section 209 (refugees and asylees). Each of the above programs provides a discretionary waiver of excludability for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, without the need for the applicant to establish the family relationship required under section 212(g) of the Act. The criteria to be used in applying such discretion for applicants who test HIV positive are: (1) the danger to the public health of the United States created by the applicant's admission to the United States is minimal; (2) the possibility of the spread of the infection created by the applicant's admission to the United States is minimal; and (3) there will be no cost incurred by any level of government agency of the United States without the prior consent of the agency.

Examiners should make it clear in their decisions that the relevant discretionary factors have been given proper consideration and that a separate finding is made on the ground of public charge. Although both fingdings (eligibility for a discretionary waiver and public charge) may be contained in the same decision, they should be written up as separate and distinct adjudications to show that each ground of inadmissibility was reviewed and considered on its own merits. As previously noted, the public charge provisions do not apply to refugees.

2. Determining Public Charge

A separate public charge determination is required for individuals applying for permanent residence under section 245A (legalization) and 210 (SAW). The legalization and SAW programs provided a special rule for determining public charge. For legalization applicants, refer to the guidelines in 8 C.F.R. 245a(2)(k)(4) and policy wires issued in conjunction with that section. For SAW applicants, refer to 8 C.F.R. 210.3(e)(4) and policy wires issued in conjunction with that section.

Refugees and individuals granted asylum who are applying for adjustment of status under section 209 of the Act are not subject to the public charge ground of excludability. Furthermore, in the case of refugees, applications to waive excludability under section 212(a)(1)(A)(i) of the Act due to HIV infection are adjudicated prior to arrival in the United States.

III. Conclusion

In conclusion, the guidelines provided in this Memorandum are intended to ensure that all waiver applications involving HIV infection are adjudicated fairly and consistently, and that all aliens found excludable under section 212(a)(1)(A)(i) are treated equally. By removing the automatic certification requirement on decisions involving immigrant waivers, the Service also seeks to streamline the waiver process by eliminating unnecessary levels of review. However, Service officers are not precluded from certifying novel or unusually complex cases. The Service wishes to emphasize that all waiver applications will continue to be adjudicated on a case-by-case basis upon careful consideration of all relevant factors. Any questions regarding the guidelines provided herein may be directed to: Sophia Cox, Sr. Adjudication Officer, (202) 514-5014.

T. Alexander Aleinikoff
Executive Associate Commissioner

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