The National Immigration Project’s publication “HIV/AIDS and Immigrants: A manual for service providers, 2004 Edition” states that “Lawful permanent residents (those with a ‘green card’) who plan to travel outside the United States should be aware that all the inadmissibility grounds apply to them, including the HIV and public charge grounds, if they are gone for more than 180 days or have committed criminal acts in the US or abroad. Individuals in these categories should meet with an immigration advocate before they leave the United States. In practice, however, some immigration officials at the border may subject HIV positive lawful permanent residents to additional delays or scrutiny, even those who have left for less than 180 days or have not committed criminal acts.”
It is also noteworthy that under the new visa rules, one has to undergo an HIV test before a visa is issued.
Kindly read below an excerpt from the homeland security website, which explains the requirements for migration under US law.
Homeland Security USA
Fact Sheet: Streamlined Process Announced for Otherwise Eligible HIV-Positive Individuals to Enter the United States
Release Date: September 29, 2008
For Immediate Release
Office of the Press Secretary
The U.S. Department of Homeland Security (DHS) has issued the Human Immunodeficiency Virus (HIV) Waiver Final Rule, a regulation that will streamline the issuance of certain short-term non-immigrant visas for non-U.S. citizens who are HIV-positive.
Streamlining the Process
Under the new regulation, U.S. Department of State consular officers overseas will now have the authority to grant non-immigrant visas to otherwise eligible HIV-positive people who meet certain requirements, instead of waiting for a special waiver from DHS. In fiscal year 2007, the average processing time for DHS to make decisions on such consular recommendations (for the issuance of non-immigrant visas and authorization for temporary admission) was 18 days. The final rule streamlines this process, and will make visa authorization and issuance available to many otherwise eligible HIV-positive travelers on the same day as their interview with a U.S. Consular officer.
The final rule applies only to foreigners who are HIV-positive and seek to enter the United States as visitors for up to 30 days; these individuals still must meet all of the other normal criteria for the granting of a U.S. visa. The issuance of visas under the rule will also be subject to certain criteria designed to ensure an HIV-positive person’s activities while in the United States do not present a risk to the public health.
Visas issued under this final rule will not publicly identify any traveler as HIV-positive.
Previously, the U.S. Department of State had to make individual recommendations on HIV-positive travelers to DHS, which then conducted a case-by-case evaluation to determine an applicants temporary admission to the United States . The State Department would occasionally recommend, and DHS approve, group waivers for events at the United Nations or other international gatherings in the United States .
The HIV Waiver Final Rule will speed up the application process by making it easier for those HIV-positive individuals who meet the requirements to get a short-term, non-immigrant visa.
However, those who do not meet the specific requirements of the rule, or who choose not to use the streamlined process, may elect the existing procedure for a case-by-case determination of their eligibility for a visa and admission authorization.
Since 1952, U.S. law and regulation have made persons “who were afflicted with any dangerous contagious disease” ineligible to receive a visa to enter the United States . People infected with HIV have been inadmissible to the United States since 1987, when Congress directed the U.S. Department of Health and Human Services (HHS) to add HIV to its list of diseases of public health significance.
Accordingly, foreigners infected with HIV have been ineligible to receive U.S. visas without a waiver by the U.S. Government.
The United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Re authorization Act of 2008, which President Bush signed on July 30, 2008, removed the statutory requirement that mandated the inclusion of HIV on the list of diseases of public health significance that made any person infected with those conditions ineligible for admission to the United States. The legislation did not, however, automatically change the existing regulations, administered by HHS, that continue to list HIV as a “communicable disease of public-health significance.” HHS is currently beginning the rulemaking process to remove HIV from the list.
For more information on the HIV Waiver Final Rule, including the published regulation, please visit http://www.dhs.gov/xprevprot/laws/ .