Ask Lambda Legal: Your Rights as an Immigrant With HIV

Q: If I test positive for HIV, will I be deported?

A: In January 2010, thanks to the hard work of Lambda Legal and others, the U.S. government lifted its blanket ban on HIV travel and immigration. That means that a person's HIV status alone is no longer grounds for deportation from the United States. However, immigration officials can still exclude or deport a person if they feel the person is likely to become a "public charge"—in other words, someone who would likely need financial support or long-term medical care from the government. Public charge findings are usually based on the receipt of cash benefits, such as welfare. Non-cash benefits, such as Medicaid, housing assistance and child-care assistance cannot be used to make a public charge finding.

Q: Can my HIV be grounds for getting political asylum in the U.S.?

Yes, but this is not an easy claim to establish. In general, to claim political asylum, you must be able to show past persecution (or a fear of future persecution) by governmental agents–in other words, that the government of your home country is itself out to get you or is intentionally not doing anything to protect you from others who are persecuting you because of your HIV. That makes it difficult to claim asylum due to a mere lack of HIV-related health services or medications. The exception is if you can prove that your government is specifically denying services to people living with HIV because it wants to harm them through a lack of appropriate care. In addition, asylum claims involving persecution based both on HIV status AND sexual orientation have proven more successful than claims based on HIV status alone.

Q: Does a positive result mean my test provider will give my name to the government?

Depends on where you're taking the test and who's giving it—but the names of people who test positive for HIV are given only to the public health department and should not be shared by health care professionals with immigration authorities. Some testing facilities still offer an anonymous HIV test, but most test providers—and almost certainly your doctor—are required to provide the names of individuals who test positive for the HIV antibody to the state or local health department. This system is called names-based reporting, and its purpose is to ensure that the federal government can collect more accurate data regarding new infections and to more accurately map the geographic contours and demographics of the epidemic. In a nutshell, anyone getting federal money to support testing must use names-based reporting. If you want to be absolutely sure that no part of the government finds out the results of your HIV test, not even the health department, make sure the test site provides "anonymous testing"—meaning the result is not associated with your name in any way.

Do you have a question? Lambda Legal's Help Desk can provide general information and refer you to legal help in your area.