| Immigration and Legal Services
Background
Founded in 1981 by volunteers, Gay Men's Health Crisis, Inc. (GMHC) is the most
experienced and comprehensive non-profit HIV/AIDS service provider in the world. Our
three-fold mission is to reduce the spread of HIV disease; to help people with HIV
maintain and improve their health and independence; and to keep the prevention,
treatment, and cure of HIV an urgent national and local priority. GMHC's compassionate,
professional staff and dedicated corps of volunteers annually serve over 7,000 men,
women and children with HIV/AIDS, and their families and loved ones.
Comprehensive Continuum of Care
Although increasingly effective medications have enabled many people with HIV/AIDS
to live longer and healthier lives, numerous psychosocial factors can impede their
ability to benefit from these treatment regimens. To ensure that people living with
HIV/AIDS overcome barriers to care, GMHC offers a complete care plan that diagnoses
HIV-positive individuals and supports them in accessing medicine, adhering to treatment
regimens, and maximizing their health over the long term. Over the past year, with the
help of a corps of 6,600 dedicated volunteers who donated 136,278 hours of time valued
at an estimated $2.5 million, GMHC provided a comprehensive continuum of care including
hot meals, legal representation, nutritional counseling, case management, support groups,
childsitting, crisis intervention, mental health counseling, client advocacy,
substance-use counseling, treatment education and HIV prevention, and public policy
advocacy.
Legal Services and Client Advocacy
The Legal Services and Client Advocacy Department has been responding to the
needs of people living with HIV/AIDS since 1983. The Department provides practical
and concrete HIV-specific services that are critical to obtaining and maintaining
access to food, housing, medical care, and employment. The Department also assists
clients in navigating the maze of government and private bureaucracies that control
the delivery of HIV specific public benefits and health care.
The Immigration Project
The Immigration Project of the Legal Services and Client Advocacy Department has
been assisting HIV-positive immigrants since 1985 on issues such as legalization/naturalization,
HIV waivers, asylum, and public benefits. GMHC's Immigration Legal Team was the first to
argue that undocumented persons who are HIV positive would be persecuted simply because
of their health status if deported from the United States. The Immigration Client Advisory
Group (ICAB) is a grass roots community group made up of immigration clients who utilize
the services of GMHC. At the GMHC ICAB meetings, GMHC provides updates on laws affecting
HIV-positive immigrants. These meetings also provide clients with an opportunity to make
recommendations to the GMHC Legal Department on important issues. Also, the Immigration
Legal Team holds a monthly Immigration and HIV Forum which is open to all HIV-positive
immigrants, their families, case workers, caregivers, and all persons interested in
learning about the role of immigration and HIV regardless of their immigration status.
The following are questions and answers that often arise when dealing with immigration
issues: they should be read with the understanding that this was the law at the time of
this publication. Please note that there are constant changes in the Immigration law. We
recommend an extensive consultation with an Immigration attorney or advocate before making
any firm decisions about applying for an Immigration benefit.
Frequently Asked Questions
1. What alternatives does someone who is HIV positive have for obtaining
legal residence in the United States?
According to United States law, if you are an HIV-positive immigrant, you cannot be
admitted to the United States. However, you may be able to get an HIV Waiver. The waiver
will allow you to stay in the U.S.; however, there are certain requirements that must be
met. The following contains general information about Immigration Law and the HIV Waiver.
You should speak to an attorney to learn more about the requirements of the HIV Waiver.
Asylum: GMHC's Immigration Legal Team can assist you with your application
for asylum if you apply before the end of the first year of your arrival in this country.
An asylum claim may be based on past persecution because you are a member of a particular
social group (gay, lesbian, HIV positive), or because you have certain political or religious
views. These are difficult cases to get granted. Careful consideration along with an extensive
legal consultation should be taken before applying for asylum. Unfortunately, if these cases
are not granted, you may face "Removal Proceedings" (deportation).
Family-Based Petition: GMHC's Immigration Legal Team may assist you with
an application for an adjustment of status/immigrant visa ("Green card") if an HIV Waiver
is granted. To do this, certain requirements must be met: you must have an immediate family
member (United States Citizen or Legal Permanent Resident spouse, parent or child) in the
United States, and can demonstrate that you had and continue to have private medical
insurance for the past year.
DV Lottery: If you are HIV positive and you have won the visa lottery,
have an immediate family member in the U.S., have private health insurance, and you are
not on public benefits, you may be eligible for a visa and a permanent residency card.
You must have a United States Citizen or Legal Permanent Resident immediate family member
in the United States to sign the HIV Waiver.
Cancellation of Removal: If you are put into "Removal Proceedings"
(deportation) there is relief that GMHC can help you apply for. You can apply for
"Cancellation of Removal." You must have lived in the United States for 10 years
continuously, and have immediate family here (husband, wife, parents, dependent
children). You must demonstrate that you have good moral character, and that there
will be an "extreme and unusual hardship" to your family should you be removed from
the United States. These are very difficult cases and they are difficult to get granted.
Country-Specific Amnesty Programs: If you are from Cuba, Nicaragua,
or Haiti you may apply for an HIV waiver if you meet the requirements of NACARA (the
Nicaraguan – Cuban Adjustment and Central American Relief Act of 1999) or of HRIFA
(Haitian Refugee Immigration Fairness Act of 1998). The Immigration Service issues
country-specific, time-limited programs, in which certain immigrants can apply to become
legal permanent residents. The programs usually are extended to the immigrant's close family
members. In the past, the Immigration Service has issued such programs for Cuba, Nicaragua,
El Salvador, Haiti, Guatemala, and the former Soviet Bloc countries. As an HIV-positive
applicant, you will need a USC/LPR immediate family member in the United States to get
an HIV waiver; it may also be necessary to have private health insurance. You should seek
advice from an immigration attorney or a legal immigrant community center about what
programs are currently available.
2. Why does the law require a private health insurance policy?
United States Immigration Law requires that most immigrants coming to the U.S. be able
to care for their own financial and medical security and not become dependent on U.S. public
benefits. Immigrants wanting to become legal permanent residents through a family member
should not be on public assistance or disability benefits. There are some exceptions to
this rule and this does not mean that you can not get medical coverage if needed, particularly
in New York. You should consult with an attorney prior to applying for any benefits.
3. Why is it important for an immigrant to know his HIV status before
applying for a residency card?
Immigration Law requires that all persons applying for legal immigrant status submit
to a physical examination by an Immigration Service-appointed doctor, including an HIV test.
The results of this examination are given to the applicant in a sealed envelope to be presented
to the Immigration Service interviewer. If the test results are positive for HIV, the applicant
must be aware that at the time of interview, he or she could be deemed excludable and subject to
removal proceedings (deportable). In that case, the applicant must meet the requirements of
an HIV Waiver.
4. If someone has no papers and is HIV positive what can this person do to get
medical services?
Everyone in the U.S. has the right to emergency medical services regardless of their
immigration status. Access to other services depends upon the various programs available
at the medical facilities. There are medical facilities that assist individuals with HIV
medication and education regardless of their immigration status. In addition, you may be
eligible for Medicaid and Rental Assistance if you are deemed "PRUCOL" (Permanently
Residing Under Color of Law).
5. What is PRUCOL, What is Voluntary Departure, What is Deferred Action?
These are complex immigration terms that may benefit you if you are undocumented and
are HIV positive. Under these programs you may be able to apply for certain limited public
assistance. These programs may not allow you to obtain a "Work Permit" or "Travel Permission."
Please contact GMHC for further information.
GMHC's Legal Services and Client Advocacy Department —
Community Locations
GMHC's Legal Services and Client Advocacy Department serves many HIV-positive clients
referred to us by medical and social service facilities within the five boroughs of New
York City. Our main offices are located at 119 West 24 Street in Manhattan.
GMHC's attorneys are stationed at community centers in Manhattan, Queens, the Bronx, and
Brooklyn to assist HIV-positive immigrants with their legal questions.
GMHC in partnership with Queens Pride House and City University of New York School of
Law also has a free legal immigration clinic for immigrants with HIV/AIDS. The clinic is
located at Queens Pride House in Woodside, Queens and is open to assist all HIV-positive
immigrants seeking assistance with their Immigration issues. Queens Pride House is a
community center that serves the diverse lesbian, gay, bisexual and trangender communities
of Queens. Their address is 67-03 Woodside Avenue, Woodside, NY 11377, or call
them at 718/429-5309, Queer Links Line: 718/429-5648.
GMHC also holds a forum on immigration issues on the third Thursday of each month. This
forum is open to immigrants, their families and friends, as well as community service
providers. The forum covers current immigration law and issues around access to health
benefits.
You can call 212/367-1040 for more information about our immigration
legal services or immigration forums. You can also call GMHC's Client Advocacy Helpline
at 212/367-1125 to obtain information about health insurance options.
© 2003 Gay Men's Health Crisis
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