HIV Declaration for B-1 + B-2 Visitor Visas Introduced by State Department

April 22, 2009

The nonimmigrant visa (B-1 / B-2) rules for HIV-positive people who want to visit the USA have been issued by the US Department of State (DOS).  Los Angeles-based immigration law firm Fong & Chun counsels and represents many HIV-positive persons, and unfortunately, the new nonimmigrant HIV Waiver Authorization puts HIV-positive people in a difficult position.

US immigration law denies entry to the USA to aliens who are HIV-positive.  For nonimmigrants who wish to come to the USA as business or touristic visitors, the procedure has been to apply for a waiver under Immigration and Nationality Act (INA) sec. 212(d)(3)(A)(i).  This waiver procedure is expensive, time-consuming, and exposes the applicant to possible arbitrary, capricious, or AIDS-phobic decisions of some adjudicating officers.

DOS has put into effect a procedure where the visa officer now has the authority to grant otherwise-visa-qualified HIV-positive applicants a B-1 / B-2 visitor visa, provided the alien signs a declaration (DS-5512) that:

(1) admits that s/he is HIV-positive; 

(2) s/he does not currently exhibit symptoms indicative of an "active, contagious" opportunistic infection; 

(3) s/he knows and has been counseled on the nature, severity, and communicability of the medical condition; 

(4) s/he is a minimal risk to public health to, and is unlikely to transmit HIV to any other person in, the United States; 

(5) s/he has an adequate supply of HIV meds for the anticipated stay and has sufficient assets, such as insurance that is accepted in the United States, to cover any medical care in the United States; 

(6) s/he will not create any cost to the United States, or a State or local government or agency, without prior written consent of the agency; 

(7) s/he is coming to visit the USA for touristic or business-visitor purposes only;

(8) that no single admission to the US will exceed thirty (30) days; 

(9) s/he is not subject to any other grounds of admissibility to the USA; 

(10) s/he admits and acknowledges that s/he cannot be admitted under the Visa Waiver Program (VWP); 

(11) s/he acknowledges that any failure to meet with ALL the conditions relating to the visa and to admission to the USA will make him/her ineligible for future authorization under this new provision; and 

(12) if s/he is admitted to the USA using this waiver procedure, s/he waives any chance to apply for an extension of stay, a change of status, or adjustment of status.  (An exception is made for applications for asylum.)

Although this procedure is more streamlined than the prior waiver, it puts the applicant in the position of signing a declaration -- admitting or acknowledging a great many facts -- which will stay on record with the US government.  The declaration includes statements which could subject the applicant to difficulties, even persecution, in his/her own country. 

Anyone thinking of signing the DS-5512 declaration to get a B-1 or B-2 visitor visa should consult experienced and HIV-sensitive counsel to discuss the ramifications.  --jcf