Almost every immigrant visa applicant will have to take, and pass, a medical exam in their country of residence in order to qualify for their respective immigrant visa. The medical examination will include a medical history review, physical examination, chest X-ray and blood tests for syphilis. The physical examination will, at a minimum, include an examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia.
In some countries, the panel physician will send the results to the U.S. Embassy/Consulate directly. In other countries, the panel physician will give the applicant his/her medical exam results in a sealed envelope and an x-ray which the applicant must bring to the interview at the US Embassy or Consulate.
According to the Immigration and Nationality Act (INA) 212(a), there are certain health related grounds of inadmissibility, upon which an immigrant visa can and will be denied. This rule states that if an applicant is determined to have a “communicable disease of public health significance,” the applicant will most likely be denied a visa (unless a waiver is applicable and approved).
Furthermore, INA section 212(a)(1)(A) sets forth a list of communicable diseases that the US Government and CDC (Centers for Disease Control) have determined to likely make an applicant inadmissible. Prior to January 4, 2010, HIV/AIDS was on this list, and those that contracted it were deemed inadmissible. “On November 2, 2009, CDC issued the HIV Final Rule removing HIV infection from the definition of communicable disease of public health significance effective January 4, 2010. It removed HIV infection as a ground of ineligibility under 42 CFR 34 and serologic testing for HIV from the scope of the medical examination for immigration purposes.”
However, while this obstacle has been lifted for those who have contracted HIV/AIDS, there is still another one to be overcome – interviewing officers at the Embassies will most likely be stricter with the financial requirement/status of an applicant.
Under section 212(a)(4) of the INA, “an immigrant visa (IV) applicant must demonstrate that he or she has a means of support in the United States and that he or she, therefore, will not need to seek public financial assistance. It may be difficult for HIV-positive applicants to meet this requirement of the law because the cost of treating the illness can be very high and because the applicant may not be able to work or obtain medical insurance.” Therefore, the interviewing consular officer must be satisfied that the applicant has access to funds sufficient for his or her support. The officer will consider the family’s income and other assets, including medical insurance coverage for any and all HIV-related expenses, availability of public health services and hospitalization for which no provision for collecting fees from patients are made, and any other relevant factors in making this determination. While there is no waiver possible for this inadmissibility, if the applicant is able to demonstrate that he or she has acquired additional insurance or funds which would be sufficient to overcome the inadmissibility, the Consular Officer may determine that the inadmissibility no longer applies.
In conclusion, while immigrant visa applicants with HIV/AIDS have had one huge obstacle removed by the 2010 removal from the communicable disease list, they will still have to show convincing proof that they will not become a public charge to the US Government.
The information contained in this article does not constitute a legal opinion nor does it serve as replacing a proper individual legal consultation. Any use of this information shall be entirely at the risk of the reader.
This article was written by Dotan Cohen Law Offices, an immigration law firm that handles legal matters related to the United States, Australia, United Kingdom, Canada, and Israel. Our contact details are:
Tel. +1-646-797-5717
e-mail: [email protected]
