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  • AOS Interview and HIV Issues

    Hi,


    I am writing (on behalf of a friend) to seek your assistance on an immigration matter.

    1. My friend, has been registered as an RN for the last three years, and has submitted an employment-based AOS application.

    2. During the course of the medical examination, she diagnosed with HIV in 2002, and has been under competent care since then - her condition has stabilized and she is doing fine.

    3. She has been called for an AOS interview on Dec 2nd - just two days away She is not completely prepared to attend the interview because her Visa screen is not complete. She thought of re-rescheduling, but decided against it for two reasons:

    -- first, she was once married to a US citizen, who bailed out on her when the time came for her first AOS interview - he failed to produce documentation needed for the interview, so she was left with no choice but to reschedule that interview in 2001/2002.

    -- when she was called for the second interview, she had already and couldn't get the notification in time to appear. As a result of these two issues, she feels she has to be present at least for this interview.

    4. The above marriage has broken - she does not know where the gentleman is - though she is still legally married to him.

    5. My friend has no legal representation at this time, and plan to present at the interview without one (unless she can obtain and afford one immediately).

    5. Now the question is, what are the implications of her status (being HIV positive) for the outcome of the AOS interview?

    -- will she be put in deportation proceedings immediately, because the INS now knows she is positive?

    --what will likely follow her appearance at the interview by herself?

    -- are there any chances that she can be allowed to stay in given that her profession is in demand in the US, and she is in good health condition, and can afford private health insurance?

    -- can the fact that she is still legally married to a US citizen be used as a basis for a waiver application, regardless of the current status of the relationship?

    She is looking for a lawyer at this time.....


    cheers - Noela

  • #2
    Hi,


    I am writing (on behalf of a friend) to seek your assistance on an immigration matter.

    1. My friend, has been registered as an RN for the last three years, and has submitted an employment-based AOS application.

    2. During the course of the medical examination, she diagnosed with HIV in 2002, and has been under competent care since then - her condition has stabilized and she is doing fine.

    3. She has been called for an AOS interview on Dec 2nd - just two days away She is not completely prepared to attend the interview because her Visa screen is not complete. She thought of re-rescheduling, but decided against it for two reasons:

    -- first, she was once married to a US citizen, who bailed out on her when the time came for her first AOS interview - he failed to produce documentation needed for the interview, so she was left with no choice but to reschedule that interview in 2001/2002.

    -- when she was called for the second interview, she had already and couldn't get the notification in time to appear. As a result of these two issues, she feels she has to be present at least for this interview.

    4. The above marriage has broken - she does not know where the gentleman is - though she is still legally married to him.

    5. My friend has no legal representation at this time, and plan to present at the interview without one (unless she can obtain and afford one immediately).

    5. Now the question is, what are the implications of her status (being HIV positive) for the outcome of the AOS interview?

    -- will she be put in deportation proceedings immediately, because the INS now knows she is positive?

    --what will likely follow her appearance at the interview by herself?

    -- are there any chances that she can be allowed to stay in given that her profession is in demand in the US, and she is in good health condition, and can afford private health insurance?

    -- can the fact that she is still legally married to a US citizen be used as a basis for a waiver application, regardless of the current status of the relationship?

    She is looking for a lawyer at this time.....


    cheers - Noela

    Comment


    • #3
      Here's what the law says: http://travel.state.gov/visa/frvi_waivers.html

      " ... Section 212(a) of the Immigration and Nationality Act reads: ...

      (1) Health-related grounds.-

      (A) In general.-Any alien-

      (i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome, ... is inadmissible. ...

      ... (B) Waiver authorized.-For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g). ... "

      What this says is that under section of 212(a)(1)(A)(i) she is inadmissible but section 212(a)(1)(B) authorizes a waiver and subsection 212(g) details what inadmissibility's can be waived.

      Here's a portion of section 212(g) that applies to her:

      " ... 212(g) The Attorney General may waive the application of-

      (1) subsection (a)(1)(A)(i) in the case of any alien who-

      (A) is the *spouse* or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen ... "

      This means that her medical condition can be waived if she's a spouse of a U.S. citizen.

      Section 212(h)(B) details the circumstances under which such a waiver can be granted:

      " ... (B) in the case of an immigrant who is the *spouse*, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is *established* to the satisfaction of the Attorney General that the alien's denial of admission would result in *extreme hardship* to the United States citizen ... "

      What all this means is that she is eligible for a permanent residence status if she can prove extreme hardship to her USC husband is case she denied. One thing that caught my eye is a phrase "denial of admission" in the last quote. Denial of admission implies that a visa applicant is outside of the U.S. She's applying for adjustment of status while in the U.S.

      Usually a Waiver of Inadmissibility form I-601 is submitted after a visa (or I assume adjustment application I-485) is denied along with a hardship letter that documents the hardships. Although I never heard about filing I-601 while in the U.S. but I could be wrong. To summarize since she doesn't even know where her USC husband is she won't be able to demonstrate extreme hardship to him which makes her ineligible for a permanent residence being HIV positive.

      Any lawyer who's not just after her money will tell her that.

      The most likely scenario is that she will be put in deportation proceedings and will be offered a voluntary departure. If she fails to depart she'll be (sorry to say) deported.

      Cheers.

      Comment


      • #4
        Sup,

        thanks very much
        -- how long is usually the time for voluntary departure, and
        --during this time can an appeal be made, what possible grounds - humanitarian, for instance,
        -- and how long does the appeal usually take.
        --If the person currently has a work permit, can she continue working during the appeal

        thanks - Noela

        Comment


        • #5
          sorry to hear about your friend.

          Comment


          • #6
            See also: http://uscis.gov/graphics/lawsregs/h..._HIV110204.pdf

            Comment


            • #7
              Amazing response you gave, sup !

              I just wanted to congratulate you on a what i believe it is a "5 star" response.

              Happy Holidays.

              Comment

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