Scialabba Memo Regarding Inadmissibility Due to HIV Infection
SUBJECT: Public Law 110-293,42 CFR 34.2(b), and Inadmissibility Due to Human
Immunodeficiency Virus (HIV) Infection
1. Purpose
The purpose of this memorandum is to direct USCIS officers to hold in abeyance any waiver
application and associated benefit request (such as adjustment of status or refugee), which would be
denied under current law, if the only ground of inadmissibility is that the applicant has been
diagnosed with HIV infection. It is not necessary to hold such a case, however, if the alien is
eligible for a waiver of inadmissibility and USCIS determines that, as a matter of discretion, the
waiver should be granted. This guidance is provided in response to the Department ofHealth and
Human Services' (HHS) publication on July 2, 2009, of a proposed rule to remove HIV from the list
of communicable diseases of public health significance and is effective as of the date of this memo.
The guidance provided in the first memorandum on this issue, Public Law 110-293 and
Inadmissibility due to HIV Infection, published on August 26, 2008, is rescinded as of the date of
this second memorandum.
2. Background
Public Law 110-293,42 CFR 34.2(b), and inadmissibility due to HIV infection
Page 2
In an August 26, 2008, memorandum, USCIS advised officers that the President had signed into law
the Tom Lantos and Henry 1. Hyde United States Global Leadership Against HIV/AIDS,
Tuberculosis and Malaria Reauthorization Act of2008, Public Law No.110-293. Section 305 of
P.L. 110-293 amends section 212(a)(l)(A)(i) ofthe Immigration and Nationality Act so that the
Secretary ofHHS is no longer required to designate HIV infection as a "communicable disease of
public health significance." The August 26,2008, memorandum also advised officers that unless
and until HHS amends 42 CFR 34.2(b), to remove HIV infection from the list ofdiseases that
qualify as a "communicable disease ofpublic health significance," officers must continue to consider
HIV as a communicable disease ofpublic health significance for which a waiver is required.
On July 2,2009, HHS published a proposed amendment to 42 CFR 34.2(b) in the Federal Register
at 74 Fed. Reg. 31798. The amendment proposes to remove HIV infection from the list of
communicable diseases ofpublic health significance. If the proposal is adopted as an interim or
fmal rule, HIV infection will no longer make an alien inadmissible.
3. Guidance
An applicant's admissibility is determined based on the law in effect at the time ofthe final decision.
See Matter ofAlarcon, 20 I&N Dec. 557 (BIA 1992). Therefore, the current version of42 CFR
34.2(b) continues to apply until such time as HHS has published a final rule amending the
regulations. HIV testing will continue to be part of the medical assessment for aliens who are
applying for an immigrant visa, refugee status or adjustment of status, and officers deciding any case
before the rule becomes final must continue to find applicants who test positive for HIV infection
inadmissible. As stated in the August 26, 2008, memorandum, applicants found to be inadmissible
due to an HIV infection may file the appropriate waiver application.
If the applicant applies for a waiver, the USCIS officer should continue following existing practices
and policy guidance. That is, ifUSCIS finds that the alien qualifies for the waiver, and that, as a
matter of discretion, the waiver should be granted, USCIS may approve the waiver and, if eligible,
any benefits application.
If no waiver was filed, but the applicant is HIV positive and may be eligible for a waiver, the officer
will still issue a request for evidence (RFE) for the waiver application. The RFE should articulate
the inadmissibility fmding based on HIV infection and advise the applicant that the Secretary of
Health and Human Services has proposed removing HIV infection from the list of communicable
diseases ofpublic heath significance. 74 Fed. Reg. 31798 (2009). The RFE should also advise that
ifHHS adopts this proposal as a final rule, the applicant may no longer be inadmissible due to HIV
infection. Until such time, however, USCIS cannot approve the adjustment of status application
absent a waiver, and therefore the delay may be significant. In the interim, applicants who wish to
receive a decision before HHS makes a final decision on whether to remove HIV infection from the
list of communicable diseases ofpublic heath significance may apply for a waiver, with fee. The
RFE should also advise that if the applicant chooses to file the waiver application before HHS
promulgates a final rule, USCIS will not refund the filing fees.
Public Law 110-293,42 CFR 34.2(b), and inadmissibility due to HIV infection
Page 3
Ifthe applicant files a waiver application, and USCIS finds both that the alien qualifies for the
waiver and that, as a matter of discretion, the waiver should be granted, USCIS may approve the
waiver and, if eligible, any pending adjustment or refugee application. Since the waiver makes the
case approvable, whether HHS adopts a final rule or not, there is no need to hold the case for the
[mal HHS rule. If the applicant does not respond to the RFE, officers should not deny the case as
abandoned. Rather, the case should be placed on hold pending the publication ofthe HHS interim or
final rule.
In light ofthe HHS proposed rule, USCIS will not deny any adjustment, refugee, or other benefit
application if the sole ground ofdenial ofthe application would be based on inadmissibility due to
HIV infection. Nor will USCIS deny any waiver application if the sole ground of inadmissibility is
HIV infection. If the applicant's sole ground of inadmissibility is HIV infection, and the officer finds
either that the alien does not qualify for a waiver, or that a waiver is not warranted as a matter of
discretion, all written decisions should state that the case will be placed on hold and automatically
reexamined by USCIS, pending the outcome ofthe rule. The hold is only for cases where the
application would be approved, but for the HIV infection. If the applicant is inadmissible on other
grounds unrelated to HIV infection, or ineligible for adjustment of status or refugee status for other
reasons, USCIS officers should enumerate all applicable grounds of inadmissibility in the written
decision, including HIV.
Should the HHS rule be adopted as interim or final, additional guidance will be issued and the
Adjudicator's Field Manual will be updated, accordingly.
4. Use
This memorandum is intended solely for the training and guidance ofUSCIS personnel in
performing their duties relative to the adjudication ofapplications for adjustment of status. It is not
intended to, does not, and may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by any individual or other party in removal proceedings, in litigation
with the United States, or in any other form or manner.
5. Contact Information
Questions regarding this memorandum and USCIS policy regarding the medical examination of
aliens may be directed through supervisory channels to OFO AOS and Legalization Mailbox,
Timothy Schaffer, Service Center Operations, Family & Status Branch, Whitney Reitz, Chiefofthe
International Operations Division Programs Branch, Pamela G. Williams, Policy and Regulation
Management, or Roselyn Brown-Frei, Office ofPolicy & Strategy.