Categories: Green Card - LPR Status

Does testing positive for HIV make someone inadmissible to the United States?

On January 4, 2010, the United States officially removed Human Immunodeficiency Virus (HIV) infection from the list of “communicable diseases of public health significance” that make an individual ineligible for admission to the United States.  This means that HIV-positive applicants seeking admission can no longer be denied solely on the basis of their HIV-positive diagnosis.

To reflect this change, HIV antibody testing is no longer part of the medical examination administered to applicants, and applicants are not otherwise required to disclose an HIV-positive diagnosis during the examination.  It is also unnecessary to disclose an HIV-positive diagnosis on any forms submitted during the petition or application processes.

However, it is important to note that all applicants for admission to the United States are subject to inadmissibility if a USCIS officer determines that they are “likely to become a public charge,” meaning that the applicant will need government assistance now or in the future.  This may affect HIV-positive applicants who are in poor health at the time they seek admission, particularly if they are unable to work or require costly medical treatment.

An applicant in poor health must show that he or she has some means of support in the United States.  For example, the applicant may provide evidence that a spouse or other family member(s) residing in the United States are employed and could support the applicant.  Alternatively, an HIV-positive applicant who is relatively healthy at the time admission is sought is unlikely to be affected by this ground of inadmissibility.

Are there any special visas for translators who assisted US forces in Afghanistan or Iraq?

Under United States immigration law, there are two Special Immigrant Visas available for Iraqi citizens or nationals who have worked for the United States.  These visas allow qualifying individuals to come to the United States as green card holders.  One is offered for translators and interpreters with the United States armed forces; the second is for Iraqis who have worked for or on behalf of the United States government.  The two programs are distinct, although some translators or interpreters may qualify under both programs.

To qualify for the special immigrant visa for translators and interpreters, an applicant must be a national of Iraq; must have worked directly with the U.S. Armed Forces or the U.S. Embassy Baghdad or U.S. Embassy Kabul as a translator or interpreter for not less than one year; and must have a letter of recommendation from a General or Flag Officer in the unit the translator supported, or from the Chief of Mission from the embassy where the translator worked.  There are 50 visas available each year in this category.  An applicant’s spouse and unmarried children under the age of 21 may also be granted visas.

To qualify for the special immigrant visa for Iraqis who have worked for or on behalf of the United States, an applicant must be a national of Iraq; must have worked for or on behalf of the U.S. government in Iraq for not less than one year between March 20, 2003, and September 30, 2013; must have a letter of recommendation from a supervisor which states that the applicant provided “faithful and valuable service” to the government; and must have faced, or be currently facing, an ongoing serious threat because of the applicant’s work for the U.S. government.  There are 2,500 visas available for this program, which currently ends on September 30, 2014.  Applications must apply on or before that date.  Again, an applicant’s spouse and unmarried children under the age of 21 may also be granted visas.

To apply for either of these programs, an applicant must submit Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, to the United States Citizenship and Immigrant Services.  The applicant must include proof of Iraqi nationality (such as a birth certificate or national identification card, along with a certified translation), and the supporting documents listed above.  The fee for a visa application for translators or interpreters is $375.  There is no fee associated with a visa application for Iraqis who have worked for the U.S. government.

My US citizen husband filed a spouse visa and green card application for me. But then he left me. Will my green card application be automatically denied?

Weddingbands

The answer is no, not necessarily.  You may still be eligible to obtain lawful permanent resident status.  The most important question is whether the marriage was entered into in good faith.  If you and your spouse entered into the marriage in good faith and there was no fraud involved, the fact that you and your spouse may be separated at the time of the lawful permanent resident status interview does not prohibit USCIS from approving your application.

Obviously, it is a lot harder to get such an application approved, but it is not impossible.

Precedent from the Board of Immigration Appeals and federal courts makes clear that if a marriage is valid at the time that it is entered in to, it is valid for immigration purposes.  Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980).  This is true even if the spouses are separated.  Id.  This is also true even if the marriage is no longer viable.  Id.  “In the absence of evidence to support a finding of a fraudulent or sham marriage or evidence showing the legal dissolution of the marriage at the time of the adjustment, the denial of an adjustment of status application or the subsequent rescission of such grant cannot be based solely on the nonviability of the marriage at the time of the adjustment application.”  Id.

See also, Matter of McKee, 17 I&N Dec. 332 (BIA 1980) (visa petition could not be denied solely because the parties to the marriage were no longer living together); Hernandez v. Ashcroft, 345 F.3d 824, 845-49 (9th Cir. 2003) (the nonviability of a marriage cannot alone be the basis to deny adjustment even if USCIS characterizes its decision to deny adjustment as discretionary.

If the marriage was entered into in good faith, a petition remains approvable even if the parties are no longer in love with one another.  Agyeman v. INS, 296 F.3d 871, 883 (9th Cir. 2002) (reversing immigration judge who told respondent that he was ineligible to adjust if his wife was no longer in love).  The key inquiry is whether the parties intended to “establish a life together at the time of their marriage.”  Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975).

If you find yourself in a situation like this, your best bet is to hire an experienced immigration attorney to assist.  To have any chance of approval, you will need substantial, documented evidence that the marriage was entered into in good faith.  An attorney can help you gather and submit that evidence in a coherent manner.

What is a re-entry permit and why would I need one?

USCIS allows lawful permanent residents to leave the United States under certain conditions.  However, if an LPR leaves for more then one year, their LPR card may be deemed invalid.  A reentry permit demonstrates to USCIS that the LPR did not intend to abandon their status and will allow for the person to reenter the United States without having to obtain a visa.  The reentry permit is only necessary for trips of longer than one year.

You must apply for the reentry permit before you leave the United States.  You must be undergo biometrics (fingerprinting) in the United States before you leave the United States.  You do not have to stay in the United States once your biometrics have been obtained.  In such a situation, you should note on your application for reentry permit (I-131) that you want the permit sent to the consulate in the country which you will be visiting.

If you have left the United States and been gone for more than one year and if you never obtained a reentry permit, you may need to apply for a returning resident visa in order to be able to come back to the United States.  However, you must show that your long stay outside the United States was outside of your control.

Obtaining a reentry permit can be tricky.  If you need assistance in obtaining a reentry permit, please contact St. Louis Immigration Attorney Jim Hacking at 314-961-8200 or by using our web contact form.

What is advance parole?

Generally, if someone has applied for lawful permanent resident status, they are not supposed to leave the United States.  If such an applicant did leave the U.S., USCIS would most likely conclude that the person had abandoned their adjustment application.

Advance parole is permission granted to an adjustment applicant to leave the U.S. while their I-485 adjustment of status application is pending.  Advance parole can be granted to an adjustment applicant who has a “bona fide business or personal reason.”   Bona fide means a good faith reason for wanting to travel abroad.  An applicant does not have to show an emergency or an extreme need to travel to qualify for advance parole.

When advance parole is awarded, it generally lasts one year and can be for multiple trips in and out of the country.  We typically file an I-131 Application for Travel Document when we file for adjustment.  If an adjustment application is filed along with the I-131, there is no filing fee for the advance parole.

Entering and exiting the U.S. while an adjustment application is pending can be tricky.  If you have any sort of criminal history, this is especially true.  Working with a top immigration attorney in filing for adjustment and in working through travel issues is a good idea.  If you need help, please call us at 314-961-8200 or by completing our contact page.

What is advance parole?

Generally, if someone has applied for lawful permanent resident status, they are not supposed to leave the United States.  If such an applicant did leave the U.S., USCIS would most likely conclude that the person had abandoned their adjustment application.

Advance parole is permission granted to an adjustment applicant to leave the U.S. while their I-485 adjustment of status application is pending.  Advance parole can be granted to an adjustment applicant who has a “bona fide business or personal reason.”   Bona fide means a good faith reason for wanting to travel abroad.  An applicant does not have to show an emergency or an extreme need to travel to qualify for advance parole.

When advance parole is awarded, it generally lasts one year and can be for multiple trips in and out of the country.  We typically file an I-131 Application for Travel Document when we file for adjustment.  If an adjustment application is filed along with the I-131, there is no filing fee for the advance parole.

Entering and exiting the U.S. while an adjustment application is pending can be tricky.  If you have any sort of criminal history, this is especially true.  Working with a top immigration attorney in filing for adjustment and in working through travel issues is a good idea.  If you need help, please call us at 314-961-8200 or by completing our contact page.

What is a re-entry permit and why would I need one?

USCIS allows lawful permanent residents to leave the United States under certain conditions.  However, if an LPR leaves for more then one year, their LPR card may be deemed invalid.  A reentry permit demonstrates to USCIS that the LPR did not intend to abandon their status and will allow for the person to reenter the United States without having to obtain a visa.  The reentry permit is only necessary for trips of longer than one year.

You must apply for the reentry permit before you leave the United States.  You must be undergo biometrics (fingerprinting) in the United States before you leave the United States.  You do not have to stay in the United States once your biometrics have been obtained.  In such a situation, you should note on your application for reentry permit (I-131) that you want the permit sent to the consulate in the country which you will be visiting.

If you have left the United States and been gone for more than one year and if you never obtained a reentry permit, you may need to apply for a returning resident visa in order to be able to come back to the United States.  However, you must show that your long stay outside the United States was outside of your control.

Obtaining a reentry permit can be tricky.  If you need assistance in obtaining a reentry permit, please contact St. Louis Immigration Attorney Jim Hacking at 314-961-8200 or by using our web contact form.

My US citizen husband filed a spouse visa and green card application for me. But then he left me. Will my green card application be automatically denied?

Weddingbands

The answer is no, not necessarily.  You may still be eligible to obtain lawful permanent resident status.  The most important question is whether the marriage was entered into in good faith.  If you and your spouse entered into the marriage in good faith and there was no fraud involved, the fact that you and your spouse may be separated at the time of the lawful permanent resident status interview does not prohibit USCIS from approving your application.

Obviously, it is a lot harder to get such an application approved, but it is not impossible.

Precedent from the Board of Immigration Appeals and federal courts makes clear that if a marriage is valid at the time that it is entered in to, it is valid for immigration purposes.  Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980).  This is true even if the spouses are separated.  Id.  This is also true even if the marriage is no longer viable.  Id.  “In the absence of evidence to support a finding of a fraudulent or sham marriage or evidence showing the legal dissolution of the marriage at the time of the adjustment, the denial of an adjustment of status application or the subsequent rescission of such grant cannot be based solely on the nonviability of the marriage at the time of the adjustment application.”  Id.

See also, Matter of McKee, 17 I&N Dec. 332 (BIA 1980) (visa petition could not be denied solely because the parties to the marriage were no longer living together); Hernandez v. Ashcroft, 345 F.3d 824, 845-49 (9th Cir. 2003) (the nonviability of a marriage cannot alone be the basis to deny adjustment even if USCIS characterizes its decision to deny adjustment as discretionary.

If the marriage was entered into in good faith, a petition remains approvable even if the parties are no longer in love with one another.  Agyeman v. INS, 296 F.3d 871, 883 (9th Cir. 2002) (reversing immigration judge who told respondent that he was ineligible to adjust if his wife was no longer in love).  The key inquiry is whether the parties intended to “establish a life together at the time of their marriage.”  Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975).

If you find yourself in a situation like this, your best bet is to hire an experienced immigration attorney to assist.  To have any chance of approval, you will need substantial, documented evidence that the marriage was entered into in good faith.  An attorney can help you gather and submit that evidence in a coherent manner.

Are there any special visas for translators who assisted US forces in Afghanistan or Iraq?

Under United States immigration law, there are two Special Immigrant Visas available for Iraqi citizens or nationals who have worked for the United States.  These visas allow qualifying individuals to come to the United States as green card holders.  One is offered for translators and interpreters with the United States armed forces; the second is for Iraqis who have worked for or on behalf of the United States government.  The two programs are distinct, although some translators or interpreters may qualify under both programs.

To qualify for the special immigrant visa for translators and interpreters, an applicant must be a national of Iraq; must have worked directly with the U.S. Armed Forces or the U.S. Embassy Baghdad or U.S. Embassy Kabul as a translator or interpreter for not less than one year; and must have a letter of recommendation from a General or Flag Officer in the unit the translator supported, or from the Chief of Mission from the embassy where the translator worked.  There are 50 visas available each year in this category.  An applicant’s spouse and unmarried children under the age of 21 may also be granted visas.

To qualify for the special immigrant visa for Iraqis who have worked for or on behalf of the United States, an applicant must be a national of Iraq; must have worked for or on behalf of the U.S. government in Iraq for not less than one year between March 20, 2003, and September 30, 2013; must have a letter of recommendation from a supervisor which states that the applicant provided “faithful and valuable service” to the government; and must have faced, or be currently facing, an ongoing serious threat because of the applicant’s work for the U.S. government.  There are 2,500 visas available for this program, which currently ends on September 30, 2014.  Applications must apply on or before that date.  Again, an applicant’s spouse and unmarried children under the age of 21 may also be granted visas.

To apply for either of these programs, an applicant must submit Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, to the United States Citizenship and Immigrant Services.  The applicant must include proof of Iraqi nationality (such as a birth certificate or national identification card, along with a certified translation), and the supporting documents listed above.  The fee for a visa application for translators or interpreters is $375.  There is no fee associated with a visa application for Iraqis who have worked for the U.S. government.

Does testing positive for HIV make someone inadmissible to the United States?

On January 4, 2010, the United States officially removed Human Immunodeficiency Virus (HIV) infection from the list of “communicable diseases of public health significance” that make an individual ineligible for admission to the United States.  This means that HIV-positive applicants seeking admission can no longer be denied solely on the basis of their HIV-positive diagnosis.

To reflect this change, HIV antibody testing is no longer part of the medical examination administered to applicants, and applicants are not otherwise required to disclose an HIV-positive diagnosis during the examination.  It is also unnecessary to disclose an HIV-positive diagnosis on any forms submitted during the petition or application processes.

However, it is important to note that all applicants for admission to the United States are subject to inadmissibility if a USCIS officer determines that they are “likely to become a public charge,” meaning that the applicant will need government assistance now or in the future.  This may affect HIV-positive applicants who are in poor health at the time they seek admission, particularly if they are unable to work or require costly medical treatment.

An applicant in poor health must show that he or she has some means of support in the United States.  For example, the applicant may provide evidence that a spouse or other family member(s) residing in the United States are employed and could support the applicant.  Alternatively, an HIV-positive applicant who is relatively healthy at the time admission is sought is unlikely to be affected by this ground of inadmissibility.