K-1, HIV and "Public Charge"

[reyem 0]

A total newbie here, and need all you folks' advices.

I am finally ready to prepare for a K-1 fiancee visa submission for my Brazilian girlfriend. We are both in our late 30s, HIV+ and healthy.

I am very concern that her status will affect her chance of getting a green card on the ground of her condition creating a "public charge" to the state. I work for nonprofit that doesn't pay a lot and with minimum insurance.

Can anyone share their experiences in applying for a HIV+ fiance(e) and spouse? How will questions on her status come up during the process? How do we avoid a rejection on "public charge" ground?

I love this girl and I really want it to work out.

Thanks in advance.

Reyem.

[Caryh 5,206]

HIV status was removed from denial based on medical condition a number of years ago.

The income requirements to sponsor a K-1 does not change based on HIV status.

You should have nothing to worry about as far as her qualifying for a K-1 visa as it relates to her or your HIV positive status.

I think the bigger issue is just going to be a personal one. Can you afford to keep treatments up for the two of you based on your low income and poor insurance?

[AmAjjD 33]

I'm guessing they'll want to know how you plan on supporting your health issues so expect to have detailed questions about that at your interview, or possibly get a RFE to support how both of your treatments will be afforded

[NigeriaorBust 4,087]

HIV was removed as a denial in 2010 but they can ask for proof above and beyond the income level for the I134 or I 864 for any long term known conditions that carry exceptional expenses. So be prepared to be asked and if you don't have a good answer then you may have issues.

[reyem 0]

Thanks everyone.

I sometimes think that I should actually go live in Brazil with her as they have universal provision for HIV meds! That being something that may happen in the future, we want her to start the naturalization process here first.

I have begun to look at ACA options for her. I know it maybe irrelevant but until recently she was making more than I do working as a business development manager in Rio, making even more than I do. We're hoping it will help to show that she's very employable and can find a job soon.

The reality is that for a stable and healthy HIV+ person these days, we need only to go back to have our tests every 3-4 months. She's been stable for over 10 years since her diagnosis. We often think that even if she doesn't have insurance here, or at least not good enough to cover her meds, she can always just fly back to Rio 3, 4 times a year just to fill up on meds. Knowing the outrageous prices of meds here even with copay, it may even be cheaper doing that. But of course it's probably not a good answer to the "Public Charge" concern.

Another option is that an old family friend, sort of an uncle for me, has agreed to be the co-sponsor if necessary. He and his wife both have high-incomes and he told me that he's done it years ago for a friend and his Mexican wife, who at the time was making LESS than poverty level. But then as far as he remember the wife doesn't have any health problems that could be considered a public charge.

What do you guys think?

Thanks again!

Edited October 30, 2014 by reyem

[jan22 2,897]

While those who said HIV has been removed as a medical ineligibility, that doesn't mean it won't cause extra requirements in your case. For example, the visa officer could request proof of payment for medical insurance for her (that's fairly common with serious medical conditions) before they will issue the visa -- and that can be required regardless of what you or a joint sponsor make that is over and above the minimum income levels. I would probably not propose the solution of her flying back to Rio to get medications as a solution unless I had checked out whether that is even possible -- it is likely illegal for her to bring that quantity of prescription drugs into the US at one time.

Sounds like you're on the right track in your investigations -- best of luck in working it out.

[reyem 0]

While those who said HIV has been removed as a medical ineligibility, that doesn't mean it won't cause extra requirements in your case. For example, the visa officer could request proof of payment for medical insurance for her (that's fairly common with serious medical conditions) before they will issue the visa -- and that can be required regardless of what you or a joint sponsor make that is over and above the minimum income levels. I would probably not propose the solution of her flying back to Rio to get medications as a solution unless I had checked out whether that is even possible -- it is likely illegal for her to bring that quantity of prescription drugs into the US at one time.

Sounds like you're on the right track in your investigations -- best of luck in working it out.

Thanks Jan,

That's exactly my concern of "public charge". I know there will be additional requirement for financial supports, but we're just not sure how far we'll have to go. Me and her can probably pull together our saving and have a joint bank account of like around 10K. With my regular incomes we can definitely put her on a reasonable plan with Kaiser or under ACA.

It'd be nice if I can hear from folks that have actually gone through the process for their HIV+ spouses.

But then I should at least be grateful that HIV is no longer an auto ban.

[KayDeeCee 4,891]

They look at the totality of the case. Just having you or the co-sponsor meet the income requirement to sponsor the foreign fiance(e) may not be enough when there are special circumstances, but it could be. It will depend on the CO really, and whether or not they believe the immigrant would become a public charge due to their health issues.

Here is what the Foreign Affairs Manual has to say about the health aspect for the affidavit of support > http://www.state.gov/documents/organization/86988.pdf

9 FAM 40.41 N5.2 Health

You must take into consideration the panel physician's report regarding the applicant's health, especially if there is a prognosis that might prevent or ultimately hinder the applicant from maintaining employment successfully or indicate the likelihood that the alien will require institutionalization.

[reyem 0]

They look at the totality of the case. Just having you or the co-sponsor meet the income requirement to sponsor the foreign fiance(e) may not be enough when there are special circumstances, but it could be. It will depend on the CO really, and whether or not they believe the immigrant would become a public charge due to their health issues.

Here is what the Foreign Affairs Manual has to say about the health aspect for the affidavit of support > http://www.state.gov/documents/organization/86988.pdf

9 FAM 40.41 N5.2 Health

You must take into consideration the panel physician's report regarding the applicant's health, especially if there is a prognosis that might prevent or ultimately hinder the applicant from maintaining employment successfully or indicate the likelihood that the alien will require institutionalization.

I see it will all come down to individual case officers.

Anyone has any resources on how I can do more researches on building a stronger case for my girlfriend?

[NigeriaorBust 4,087]

You mentioned she has been in very good health for the last 10 years . Will her normal doctor write a statement of her history and what he sees are her future probabilities are. I know there is a huge difference in health for HIV positive people. I work closely with a men that is dealing with this and for years he has been fine and at working every day. Price out insurance and show a plan to cover the costs. When my husband went through medical it was still a permanent ban and a family there at the same time both came back positive ( DV lottery ) and just a few months later they would have gotten past the medical ( although probably not the public charge ) Can you get any official data on the prognosis for people at her stage and the long term outlook ( CO's aren't experts on this )

[NYCruiser 423]

They look at the totality of the case. Just having you or the co-sponsor meet the income requirement to sponsor the foreign fiance(e) may not be enough when there are special circumstances, but it could be. It will depend on the CO really, and whether or not they believe the immigrant would become a public charge due to their health issues.

Here is what the Foreign Affairs Manual has to say about the health aspect for the affidavit of support > http://www.state.gov/documents/organization/86988.pdf

9 FAM 40.41 N5.2 Health

You must take into consideration the panel physician's report regarding the applicant's health, especially if there is a prognosis that might prevent or ultimately hinder the applicant from maintaining employment successfully or indicate the likelihood that the alien will require institutionalization.

I am confused at this advice.

I dont know why with your initial application I-129f either of your HIV status' should come up? It is not relevant to the petition. AT the medical interview unless she is showing symptoms of AIDS (There are no symptoms for HIV generally after the initial stage)? Testing for HIV at the Medical Interview at the USPS is not done. Unless she is co-infectious for HCV or HBV? Then that will raise red flags.

She is not required to tell them that she is on HIV meds as I understand it. However what I dont know is this: Do they do a blood test to determine blood counts? Then those could be lower and trigger questions...

Anyone on here know this?

As far as the I-131, Affidavit of Support, I dont know if co-sponsors are allowed for K1 visas...someone pipe in here

David

[Jawaree 717]

1. Medical insurance for her maybe requested be purchased

2. for a time period, letters from her Dr, the panel Dr states in

the report she is in a healthy stage, HIV is no longer is on the

list of bans unless really ill & weak, just as in Cancer and mental

illnesses (like prior attempted sucides)

[Expat1 971]

I am confused at this advice.

I dont know why with your initial application I-129f either of your HIV status' should come up? It is not relevant to the petition. AT the medical interview unless she is showing symptoms of AIDS (There are no symptoms for HIV generally after the initial stage)? Testing for HIV at the Medical Interview at the USPS is not done. Unless she is co-infectious for HCV or HBV? Then that will raise red flags.

She is not required to tell them that she is on HIV meds as I understand it. However what I dont know is this: Do they do a blood test to determine blood counts? Then those could be lower and trigger questions...

Anyone on here know this?

As far as the I-131, Affidavit of Support, I dont know if co-sponsors are allowed for K1 visas...someone pipe in here

David

HIV test (as well as tests for other 'communicable diseases', there is a list of them) is done for everyone after a petition is approved and before the visa interview. HIV was automatic ban until around 2010 or so but now HIV status has become a minor hurdle on the affidavit of support side because of the potential high cost of treatment.

The OP is simply gathering information on how to overcome that potential hurdle, the most common of which is to demonstrate medical coverage or potential for medical coverage.

An example of one way to do this would be to clearly demonstrate that the poverty requirements are met AND that there is adequate income to cover 100% of annual out-of-pocket limits as per the current plan.

You are correct that:

Petitioner's HIV status should not be a factor but it will probably come up and as we all know, if they ask at the interview, its probably best to disclose it

Allowing co-sponsor for K1 seems to be sometimes allowed and sometimes not allowed. Inconsistent between the consulates.

Marrying first and applying as spouse with co-sponsor would probably simplify, might be a good plan B

Edited October 31, 2014 by Expat1

[reyem 0]

HIV test (as well as tests for other 'communicable diseases', there is a list of them) is done for everyone after a petition is approved and before the visa interview. HIV was automatic ban until around 2010 or so but now HIV status has become a minor hurdle on the affidavit of support side because of the potential high cost of treatment.

The OP is simply gathering information on how to overcome that potential hurdle, the most common of which is to demonstrate medical coverage or potential for medical coverage.

An example of one way to do this would be to clearly demonstrate that the poverty requirements are met AND that there is adequate income to cover 100% of annual out-of-pocket limits as per the current plan.

Thanks folks, but I am getting more confused.

My understanding is that a HIV test will NOT be performed. But during the medical examination for K-1 arranged by the local embassy, a finance(e) will be asked what sort of medications s/he is currently taking. In my girlfriend's case, she's on three HIV medications but nothing else.

My understanding we must not lie, as the consequences of being found out are more devastating than getting a rejection at first try.

I am 3 times above poverty level, and my insurance from work barely covers my med and doesn't offer to cover a spouse. I am talking to friends about ACA options or Kaiser, and with our saving we can probably demonstrate that even without work we should be able to cover her for a year or so without major hardship.

But then at which point should I submit the information during the K-1 process? Or the doctor's reports from her clinic that she's perfectly healthy as long as she's on meds? Should we volunteer the information at our package?

How does that work?

[KayDeeCee 4,891]

I am confused at this advice.

I dont know why with your initial application I-129f either of your HIV status' should come up? It is not relevant to the petition. AT the medical interview unless she is showing symptoms of AIDS (There are no symptoms for HIV generally after the initial stage)? Testing for HIV at the Medical Interview at the USPS is not done. Unless she is co-infectious for HCV or HBV? Then that will raise red flags.

She is not required to tell them that she is on HIV meds as I understand it. However what I dont know is this: Do they do a blood test to determine blood counts? Then those could be lower and trigger questions...

Anyone on here know this?

As far as the I-131, Affidavit of Support, I dont know if co-sponsors are allowed for K1 visas...someone pipe in here

David

The OP is asking about the overall K-1 process and if HIV could be a factor for denial due to becoming a public charge. They will not test for HIV, but they will need to reveal their medical history and current conditions as part of the K-1 medical exam.

The I-134 affidavit of support is submitted at the actual K-1 visa interview. They did not ask what to send with the I-129F petition and I was not speaking about the I-129F petition. They will not state anything about HIV in the I-129F petition, nor will they need the I-134 yet. The CO deals with that when deciding whether or not to approve the K-1 visa.

Co-sponsors are accepted for K-1 visas by most of the consulates. There are a few where they are rarely accepted or not accepted at all.

Thanks folks, but I am getting more confused.

My understanding is that a HIV test will NOT be performed. But during the medical examination for K-1 arranged by the local embassy, a finance(e) will be asked what sort of medications s/he is currently taking. In my girlfriend's case, she's on three HIV medications but nothing else.

My understanding we must not lie, as the consequences of being found out are more devastating than getting a rejection at first try.

I am 3 times above poverty level, and my insurance from work barely covers my med and doesn't offer to cover a spouse. I am talking to friends about ACA options or Kaiser, and with our saving we can probably demonstrate that even without work we should be able to cover her for a year or so without major hardship.

But then at which point should I submit the information during the K-1 process? Or the doctor's reports from her clinic that she's perfectly healthy as long as she's on meds? Should we volunteer the information at our package?

How does that work?

You were correctly understanding. You do not need to submit any info about your finances or the HIV medical condition with the filing of the I-129F petition to begin the process. They should not test for HIV either, but they will be asked medical questions and being HIV+ would come up at the medical. Yes, you should be honest about it. Taking a letter from your regular doctor testifying to the fact that you are healthy and the prognosis for continuing to remain healthy could be quite helpful.

What the medical exam will entail > http://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/technical-instructions-panel-physicians.html

HIV guidance for panel physicians > http://www.cdc.gov/immigrantrefugeehealth/exams/ti/hiv-guidance-panel-civil.html