Sitting on a couch in his New York apartment one Saturday evening, Alex, a 29-year-old straight-talking marketing assistant, showed sadness and frustration as he discussed how his hopes to get his green card turned bleak after he was tested positive for H.I.V.
The day he got the result of his medical examination, he said, seemed like “two deadly lightning bolts” that struck him at the same time. He knew he has to live with H.I.V. all his life, and it was the start of an uphill battle to get his U.S. permanent residency status.
Afraid to admit to his family that he is a homosexual man, and living with H.I.V. for two years, Alex, who asked to conceal his last name because only a few close friends know about his H.I.V. status, feels he has nowhere to go.
“Until this time, I’m in an extremely small deadbolt-locked room. If I went back to my home country, I’m not sure if I would get the proper healthcare that I need,” he said. “And I don’t know either what’s going to happen with me if I stay in the United States.”
With lawmakers still are reeling over the issue of same-sex marriage, Alex’s case – a Chinese man, living with his American partner in Manhattan’s Upper East Side, currently holding a nonimmigrant work visa, infected through a number of previous man-to-man sexual affairs –echoes the crucial link between H.I.V. and a green card.
The Immigration and Nationality Act, in Section 212 (a)(1), rules that any applicant found to be infected with a communicable disease of public health significance could be denied either a non-immigrant (temporary) visa or an immigrant visa (green card).
“H.I.V. is a ground of inadmissibility because it is considered to be a communicable disease of public health significance,” said Cyrus D. Mehta, an immigration lawyer and secretary of the New York Bar Association. “Any applicants infected with H.I.V. must obtain a waiver against the ban.”
In order to qualify for a waiver, under the U.S. immigration law, one way for the HIV-positive applicant has to establish an immediate family relationship, he said. This person must be a spouse or unmarried son or daughter, or a minor unmarried adopted child of a U.S. citizen or green card holder, or have a son or daughter who is a U.S. citizen or green card holder.
Another way to get a waiver, Mehta said, is to have a [private] health insurance, be treated by a physician and must also establish that he or she will [not] become a public charge.
“It is impossible to get a waiver if the applicant with H.I.V. doesn’t have private health insurance. Generally that’s what the U.S. Customs and Immigration Services requires,” said Mehta.
Health studies have documented that immigrants are among the millions of people who have no private health insurance in the country today. This could be attributed to low income and absence of legal documents to stay in the country.
But even if an applicant tested positive for H.I.V. and has private insurance, the burden of proving he or she won’t become a public charge ground does not end there. The applicant must show proof of work or promise of work or have an affidavit of support submitted on his or her behalf, Mehta said. If the applicant received help from N.Y. State Health Department’s AIDS Drug Assistance Program, or any other state or federal subsidy, it is important that the applicant should not be receiving such public assistance at the time of the interview.
Mehta, a graduate of Cambridge University and Columbia Law School, who gives lectures on the intricacy of H.I.V. and immigration issues in legal workshops, seminars and universities, said the qualification for a waiver is apparently more difficult for homosexuals.
“Gays and lesbians are most likely unable to establish a legally cognizable marriage under the law. They are also less likely to have other close family members in the United States as they may have come to the here to escape being shunned or ostracized by these very family members in their own countries,” he said.
As for Alex, neither of his family members nor immediate relatives are U.S. citizens. He also doesn’t have health insurance.
In New York City, H.I.V./AIDS cases in ethnic communities have dramatically increased over the recent years. Chinese ranked first, followed by Filipinos, Southeast Asian Indians and Japanese, respectively. Although ranked 8th, South Koreans in the city are believed to have a higher number of cases than what had been reported as most of Korean homosexuals are “closeted.” (New York Department of Health, March 2002).
This confirms reports that cases of green card applicants living with H.I.V. have also gone up.
“I have come across these type of cases all the time, especially among interracial homosexual couples,” Mehta said.” Some of them only learned that they are infected with H.I.V. when they applied for a green card.”
Stigma and taboos
According to a study conducted by the Asian and Pacific Islander Coalition on H.I.V./AIDS (APICHA), misconceptions, taboos and outright homophobia have fostered denial among a broader population of gay Asian and Pacific Islanders.
“Within the Asian Pacific Islander (API) community, it is not common for most parents to discuss sex in the family. How much more [with] homosexuality and H.I.V. and AIDS? It sounds
very scary to them,” Bric Bernas, program manager of APICHA, said in previous interviews.
APICHA, a leading New York-based H.I.V./AIDS service groups, which provide research, testing and counseling to the API community, is making massive efforts to establish more testing sites in New York – just like any other states in the country – to make testing more accessible to people, as well as introducing more convenient methods of testing such as the rapid test that can be done at home as easy and safe as a pregnancy test. According to the organization, the problems in reaching people are potentially more serious when the target respondent is deeply stigmatized by cultural norms and religious beliefs.
“Negative feelings against homosexuality have resulted in hesitation to visit testing sites. It’s difficult to convince people to get tested when they fear what others may say,” Tooru Nemoto, assistant professor of the Center for AIDS Prevention Studies at University of California in San Francisco (UCSF), said earlier in a phone interview. “The social pressure and discriminatory
perception against homosexuality has a major drawback in ethnic communities.”
Nemoto said the reported number of H.I.V. and AIDS cases among immigrants is actually “the tip of the iceberg,” if you consider the tens of thousands of untested HIVers.
A ray of hope?
Citing equal rights, advocacy groups are pushing for the amendment of the laws affecting the homosexual and transgender community.
If an applicant with H.I.V. does not qualify for a waiver under current family and health insurance grounds, advocates said, the waiver provisions should be expanded. Otherwise, many affected individuals may end up breaking immigration laws.
“Unless same-sex marriage is legalized, many applicants infected with H.I.V., like anyone who doesn’t have the visa to stay longer in the country, will live an underground life,” said Arthur Zabenko, an immigration lawyer based in New Jersey.
Since public health is a major issue for immigration, said Zabenko, it is important for policymakers to broaden laws on same-sex marriages, which would allow more deserving people clearly eligible for a green card.
To date, a legislation known as the Permanent Partners Immigration Act (PPIA) has been proposed by Congressman Jerrold Nadler (D-NY).
Under PPIA, the “permanent partners” will be recognized and added to the usual family members – spouse, child and parent – who can sponsor relatives or provide the basis for H.I.V. and other waivers.
The PPIA defines a permanent partner as “an individual over 18 years of age who is in a committed, intimate relationship with another unmarried individual over 18 years of age, in which both parties intend a lifelong commitment; is financially interdependent with that other individual; is not married to or in a permanent partnership with anyone other than that individual; and is unable to contract with that other individual a marriage cognizable under the Imigration and Nationality Act (INA); and is not a first, second or third blood relation of that other individual.”
Claiming that several other countries have recognized the ability of a same-sex partner to serve as a family member for immigration benefits, Mehta, in one of his articles posted on his Web site, said: “It is high time that the United States, a nation of immigrants, adopt more progressive laws that would make it easier for persons infected with H.I.V. to obtain waivers. While the PPIA has a long way to go before it becomes law, over 70 Congresspersons have indicated that they will support this legislation. Only effective and persistent advocacy will ensure that the PPIA some day gets a majority of votes in Congress.”
“I hope there’s hope,” he said.
