Immigration & HIV

According to the American Immigration Council, “one in six Texas residents is an immigrant, while another one in six residents is a native-born U.S. citizen with at least one immigrant parent.”

Until 2010, federal immigration law prevented people living with HIV from entering the U.S. However, “effective January 4, 2010, HIV is no longer a bar to entry into the United States for visitation or immigration purposes. This means that HIV status alone cannot be a reason for excluding, removing, or deporting a person from the United States.” 

Barack Obama signs the Ryan White HIV/Aids Treatment Extension Act at the White House, 2009.
Photo courtesy of: Gerald Herbert/AP

How do we support our fellow Texans living with HIV who might also be navigating the often confusing and fear-inducing immigration system?

Let’s first clear up a few acronyms you might have heard or seen.

INS: Immigration and Naturalization Service: formed during the Great Depression and oversaw immigration processes and enforcement until 2003 with the passage of the Homeland Security Act which created the USCIS (see below); no longer exists.

USCIS: United States Citizenship and Immigration Services: agency created in 2003 with the passage of the Homeland Security Act under the Department of Homeland Security; oversees both ICE and CBP (see below).

ICE: Immigration and Customs Enforcement: created in 2003 under the umbrella of USCIS and is tasked with enforcing immigration laws throughout the United States.

CBP: Customs and Border Patrol (aka Border Patrol): created in 2003 under the umbrella of USCIS and is tasked with enforcing immigration laws at and near the U.S. border and is responsible for patrolling the border areas of the United States. You may have had to stop at one of their checkpoints near the border to show proof of citizenship, or have seen their green and white vehicles patrolling near the border.

Achieving Together sat down recently with Stephanie Taylor, JD, an immigration lawyer with Hansen & Taylor, PLLC in Austin, Texas, to help us understand the concept of the “public charge” and how we can best provide HIV services and resources to our immigrant patients and consumers here in Texas. To better understand Public Charge, see the box after the interview.

Current Public Charge Rules and People Living with HIV

While the public charge does not currently affect federal HIV funding, there have been rumors and reports that it could in the future and that the current administration would like to include Ryan White into programs affected by the public charge determination. Can you please inform us where the public charge rules currently stand, what the future of those rules looks like, and how they might affect immigrants relying on federally-funded programs for healthcare, particularly Ryan White and other programs for people living with HIV?

The new 2019 Department of Homeland Security public charge rule was suspended during the declared national emergency related to COVID-19.  However, on August 12, 2020, this suspension was limited to New York, Connecticut and Vermont.  The rule applies everywhere else in the United States.  A timeline of the rule and litigation can be found here:

When determining whether or not someone is likely to be a “public charge” the new rule looks at whether the individual receives certain means-tested benefits.  The use of state, local and tribal funded non-cash programs and Ryan White programs (including the AIDS Drug Assistance Program, or ADAP) are not included in the rule and do not count towards someone being determined a public charge. Receiving public benefits does not automatically make an individual a public charge.  Therefore, there is no need to disenroll in services for most people who are subject to the public charge.

The new rule emphasizes consideration of negative factors in a person’s life circumstances when evaluating whether they are likely to become a public charge in the future. The new rule encourages immigration officers to consider age and ability to work, health conditions, income, ability to speak English, and whether or not the person has private health insurance.

Immigration Enforcement and HIV Service Providers

A lot of people working in the HIV field have concerns about Immigration and Customs Enforcement (ICE) showing up at their clinics and/or offices. What should a clinic/non-profit/agency do should ICE show up? What are the rights of staff, and what is the best way to keep their clients safe?

The best thing that individuals and organizations can do to protect themselves against ICE is to be informed of their rights, including the right to remain silent and not identify themselves, and the right to not consent to search. The Immigrant Defense Project has excellent Know-Your-Rights materials and posters in many languages that can be found here:

We recommend that agencies print out these posters in multiple languages and hang them in waiting rooms, and disperse them freely to community members.

The Immigrant Legal Resource Center (ILRC) has an excellent toolkit available online in English and Spanish:

COVID-19 and Immigration

How might COVID-19 affect someone’s immigration status if they are undocumented and show up for healthcare? What are their rights and what ideally should people know ahead of time before presenting at a hospital/clinic if they are worried about their immigration status?

From ILRC: “All noncitizens should get the care they need. USCIS announced that testing, treatment, and preventive care (including a vaccine if one becomes available) for COVID-19 will not be considered in the public charge test. These services will have no negative impact, even if such treatment is provided or paid for by one or more public benefits (e.g., Medicaid). These services also will not impact noncitizens seeking an extension of stay or change of status. (See Additionally, if a person subject to the public charge ground of inadmissibility lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the person’s employer, school, or university shuts down operations to prevent the spread of COVID-19, they may submit a statement with their application for adjustment of status to explain how such methods or policies have affected the factors USCIS must consider in a public charge inadmissibility determination.”

Finally, Stephanie states that our LGBTQ noncitizen community members are often the most vulnerable and disenfranchised.  Encouraging them to get screened for immigration relief by a private lawyer or immigration non-profit is important. One of the six focus areas of Achieving Together Texas is to create supportive environments, part of which involves addressing the barriers to HIV prevention, care, and treatment created by the fear of deportation and by the inadequate services offered in immigration detention centers.

We have heard from HIV providers and community members across Texas that fears related to immigration and deportation have affected people accessing HIV prevention and care.  The information in this post provides some guidance to help organizations and individuals navigate through these issues.  What challenges have you experienced as community members and organizations?  Have you developed practices and solutions to continue to support and serve your communities while dealing with challenges related to immigration policies?

Public Charge
A question that often comes up when thinking about immigration and HIV services is the concept of the public charge. “Public charge is the language used by the government to describe someone who they think will become dependent on government assistance for their primary source of support to live in the U.S. Immigration officials apply a public charge rule to help decide whether to approve an application for a green card (i.e. legal permanent residence or LPR status) or when deciding who they will allow to enter into the U.S.” According to the United States Citizenship and Immigration Services, in general, public charge is defined as someone who receives one or more public benefits for more than 12 months (total) within a 36-month period. 
In order for someone to be eligible for a visa or lawful permanent residency, they have to show they are “admissible” under US immigration law.  There are lots of different ways someone can be “inadmissible” and therefore ineligible.  For example, if you’ve been convicted of certain crimes, entered the US without lawful status, or have been deported, you would be inadmissible under each of those different sections of the law.  In addition to these examples, someone who “at the time of application for admission…is likely at any time to become a public charge” is “inadmissible.” This is often referred to as the “public charge” ground of inadmissibility.
The grounds of inadmissibility that apply to an individual depend on the type of visa and/or how they are getting their lawful permanent residency.  For example, the public charge rule does not apply to those applying for status based on being a crime victim (U Visa) or a trafficking victim (T Visa).  The public charge rule also does not apply to asylees or refugees.  Additionally, someone who already has their green card generally does not have to worry about the public charge ground of inadmissibility, except in limited circumstances. This law mainly impacts those seeking permanent resident status through family member petitions.
Someone who is undocumented should only worry about the public charge ground of inadmissibility if they have a way to get legal status.  A consultation with an immigration attorney can help you determine whether or not you need to worry about the public charge. 
For example, Natalie entered the United States when she was 4 years old.  When she was 18, she was deported.  She returned to the United States without a visa three years later.  She is now married to a US citizen.  Natalie is HIV positive and wants to apply for free treatment through Travis County.  Natalie is subject to several different grounds of inadmissibility.  The least of her worries in this scenario is the public charge ground. She is probably not eligible for a visa or lawful permanent residence for many different reasons that have nothing to do with public charge. Natalie should talk to an immigration attorney before she makes any decisions that could affect her access to healthcare.
To learn more about the history of the public charge: Read The History Of ‘Public Charge’ Requirements In U.S. Immigration Law

Stephanie Rodriguez Taylor is originally from Brownsville, Texas, and obtained her bachelor’s degree from the University of Texas at Brownsville. After graduating from the University of Texas School of Law, Stephanie received the Julius Glickman Fellowship in Public Interest Law which initially funded her work on criminal-immigration issues at American Gateways (formerly the Political Asylum Project of Austin). She is now in private practice in Austin, Texas at Hansen & Taylor, PLLC, a law firm dedicated to providing immigration legal services for working people and families in Central Texas. The firm operates on a sliding scale to ensure that everyone has access to high-quality legal services, regardless of their income.

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