Since he was diagnosed with HIV in 1994, José hadn’t missed a day of his antiretroviral medication.* That changed when he applied for his green card. José, a Mexican citizen, had been living undocumented in California for years until he married a US citizen and became eligible for permanent residency. Since he was not in the United States legally, he had to return to Mexico to have the required medical exams before he could return to the United States with legal status. He anticipated a two-week stay for the medical exams; he packed a month of medication just to be sure.
Within a few days of arriving in Mexico, though, doctors informed José that because of his HIV status, he would need more stringent medical tests. He would need to stay in Mexico until they got the results, which would take three months. He frantically traveled to different states and cities, but couldn’t find a supply of his specific antiretroviral medication. So José went two months without it.
“It was a nightmare and such a stressful thing because you don’t know what the outcome is. You don’t know if you’re going to be allowed to come back,” said José, who also lost his job and medical insurance because of the unexpected wait. “We [José and his husband] would FaceTime, and I would just cry.”
People applying for a green card must pass medical examinations to ensure they have the required vaccinations, and that they would not pose a health threat to the current US population, according to United States Citizen and Immigration Services (USCIS). One of those required tests is for tuberculosis. Typically, the TB test can be performed with a simple skin or blood test. But people with HIV, who are more vulnerable to contracting TB, are required to take a sputum test, where a small amount of mucus from within the lungs is tested for the bacteria. The test results can take three months to process.
Green card applicants who entered the US legally can do the medical tests in the United States, but applicants who are not here legally must leave the country to “reset” their immigration status, according to immigration attorneys. Those HIV-positive green card applicants can end up stranded for months without access to adequate medical care while they wait out the results of their immigration applications.
Aaron Morris, the executive director of Immigration Equality, said there has been a spike in these cases in the past 18 months. Since the Defense of Marriage Act was overturned in 2013, US citizens can legally marry and sponsor their same-sex partners for green cards. And since, in the US, HIV disproportionately affects the gay community, there have been more and more people like José—HIV-positive, undocumented immigrants applying for green cards, who end up unexpectedly stranded outside of the United States because of the TB test.
Immigration advocates say that a simple fix in procedure—allowing these green card applicants to conduct their TB tests in the US—would keep these pending permanent residents surrounded by their medical and family support systems.
Ally Bolour, an immigration attorney in Los Angeles, has already worked with ten clients, including José, who have fallen into the sputum test loophole. So far, all have involved green card applicants who were born in Mexico, a country with limited access to the medication they need.
“They have no place to stay and no way to earn an income [in Mexico]. Their family is in the US,” said Bolour of these clients. “We have a regulation that doesn’t make sense.”
Mixes of antiretroviral medicines that are very specific to each patient are often not available in Mexico, according to Tom Davies, a professor emeritus at the Center for Latin American Studies at San Diego State University. If it’s available, a month’s supply in Mexico can cost thousands of dollars; shipping it in from the United States can also be difficult.
Last year, Antonio—an HIV-positive undocumented immigrant who applied for a green card after marrying his partner—found himself stuck at the US consulate in Ciudad Juárez for more than a month. (He asked to be referred to by first name only, because his family does not know he is HIV-positive.) Antonio could only take a month’s supply of his antiretroviral medication with him, because that is all his insurance would give him in advance. His husband attempted to ship him more medication, but the package was turned away at the border because Mexico requires a permit to ship prescription medication.
In a last ditch effort, the couple and their immigration attorney contacted Luis V. Gutiérrez, a congressman from Illinois and a prominent advocate for immigration reform. Gutiérrez helped Antonio secure humanitarian parole, which allowed him to return to the US briefly for medical purposes.
“Government policies are generally one-size-fits-all, and sometimes people get put in difficult or potentially deadly circumstances,” Gutiérrez told VICE in a statement. “Sometimes people need help getting the bureaucracy to come to the logical and humanitarian outcome.”
Morris said his organization, Immigration Equality, is pushing for a change in the procedure—specifically, advocating to test HIV-positive, undocumented green card applicants in the US. The results could then be sent directly to US consulates ahead of the applicant’s green card interview.
Morris noted that by stranding people without access to their medication puts them at even greater health risks. “They are putting these people at greater risk by sending them to countries where TB is an issue and asking them to stay there for three months,” he said.
Antonio’s partner, Darren, emphasized that they were only able to get Antonio his medication because they had a committed immigration attorney, the help of a congressman, and the financial resources to stay afloat during the costly ordeal.
“I just hope we can prevent it from happening to someone else,” he said.
*Name has been changed to protect his identity.