An End To The Statutory Ban On HIV Travel And Immigration (But Not To The Regulatory Ban)
On July 30, 2008, President Bush signed the President’s Emergency Plan for AIDS Relief (Pepfar) which reauthorizes billions of dollars to spend in the fight against the global AIDS pandemic. The legislation also included a provision inserted by Senator John Kerry (D-MA) which will amend the Immigration and Nationality Act (“ INA”) to remove the statutory ban on HIV travel and immigration. This means that step one of a two step process has been completed, but there may still be another battle ahead.
Beginning in 1987, having AIDS was considered “a dangerous contagious disease” and thus a ground of a ground of excludability from the U.S. In 1990, the INA was amended to change the public health ground of exclusion to “a communicable disease of public health significance” and the Department of Health and Human Services (“HHS”) was given the authority to determine what illnesses should be on this list. HHS initially included HIV on the list, but in 1991 and again in 1993, HHS proposed rules to would remove HIV, and all other diseases except for active tuberculosis. HHS stated that since HIV is only transmitted through limited means and not through casual contact, the best way to protect the American public from infection was through education. The 1993 proposed rule generated 175,000 comments, 65% of which favored removing HIV from the list. With the removal of HIV from the HHS list imminent, Senator Nickles (R-OK) offered an amendment to a funding bill which included codifying the HIV ban. The bill passed easily and Present Clinton signed it. For the last fifteen years, HIV has been the only medical condition which statutorily bans non-citizens from admission into the U.S.
The HIV ban on travel and immigration has taken a real toll. It has meant that the U.S. has not hosted an international AIDS conference in over 15 years. It has meant that employers have been unable to retain valuable workers who are ineligible for legal permanent residence simply because they are HIV-positive. It has meant that individuals who want to visit the U.S. as tourists have been unable to do so. And it has torn apart families who have been unable to meet the often insurmountable requirements of the I-601 HIV waiver.
Removing HIV from the INA is an enormous first step towards ending this anachronistic and discriminatory policy, but until HHS acts to remove HIV from its list, non-citizens with HIV will continue to be inadmissible. In the short-term practitioners should understand that the HIV ban is still in effect and clients who are inadmissible must continue to seek and receive waivers in order to gain admission. In the long-term practitioners should review their dockets and consider how lifting the HIV ban will affect pending or closed cases. Are there cases where individuals were denied admission, adjustment or were placed in removal proceedings because they are HIV-positive? Which cases might be subject to re-opening? Can open cases be adjourned long enough to allow for HHS to act?
Before we start to unravel the complex issues which would be raised by a full lifting of the ban, however, we must work with HHS to ensure that it promptly removes HIV from its list. We should be prepared for another battle which could include tens of thousands of public comments to HHS. Everyone who cares about this issue should be prepared to submit comments to HHS and help present a human face to the HIV ban. As the U.S. prepares to spend billions of dollars fighting AIDS abroad, it is time to implement sound public health policy at home and end this discriminatory policy.
For updates about changes in policy to the HIV ban, please see our website www.immigrationequality.org. For additional reference materials, see below.
HIV Primary Source MaterialsAlthough the statutory HIV ban has been in effect since 1993, it is still difficult to get information about applying for HIV waivers. The forms that are used to file for HIV waivers, forms I-601 (for family-based eligibility) and I-602 (for refugees and asylees) require a special HIV supplement which is not available on the CIS website. You can download the form here. HIV Waiver Supplement.pdf Until recently (2007), HIV waiver applicants who reside in New York were not required to have the waiver supplement endorsed by a local or state health officer and were able to use a slightly different version of the HIV waiver supplement. However, applicants who have used the NY supplement have recently had their waiver applications returned with a requirement that they be endorsed by the local health officer (that is the Department of Health), so we have removed the NY state form from our website. In 2004 CIS released a Memo which details the eligibility and application process for individuals with HIV who are applying for K (fiance/fiancee) visas or V (individuals outside the country with long-standing approved immigrant visa petitions). HIV waiver memo.pdf In 2002, CIS issued a comprehensive Memo on adjudicating medical waivers including but not limited to HIV waivers. This long (55 page) Memo, has important information about both non-immigrant waivers and waivers for legal permanent resident applicants, as well as information about vaccination requirements. 2002 HIV Immigration policy memo.pdf In 1996, then INS issued a Memo stating that HIV positive status could be grounds to seek asylum and that Immigration should seek to grant discretionary relief to individuals who are HIV positive. That Memo is reproduced here. HIV asylum memo.pdf New York State prohibits medical and social services providers from disclosing any confidential HIV-related information about their patients/clients without first obtaining a signed release from the individual. General medical releases are not sufficient to release HIV information. Additionally, while it the HIV release is not strictly required for attorneys, it is best practice in New York to have a client sign an HIV release before the attorney releases HIV information to any outside individual or agency (including CIS.) The New York State HIV form can be downloaded here. HIV release-HIPAA compliant.pdf HIV Ban FAQs For now, if you are HIV positive and planning to travel to the U.S. or planning to apply for legal permanent resident status you must still obtain a waiver of inadmissibility. What is the HIV bar to immigration? Section 212(a)(1)(A)(i) of the Immigration and Nationality Act states that any foreign national with a “communicable disease of public health significance” which includes HIV, is “inadmissible.” This means that if you are HIV-positive, you can only obtain a “green card” if you qualify for a waiver. If you are HIV-positive and apply for legal permanent residence and do not qualify for a waiver, your application will be denied and you may be placed in removal (deportation) proceedings. Does this bar apply to non-immigrants also? Yes, even applicants for non-immigrant (temporary) visas can have their visa applications denied if the U.S. government learns of their HIV status. While applicants for legal permanent residence must undergo a full medical exam, including an HIV test, applicants for non-immigrant visas generally do not take a medical exam and are not tested for HIV. Didn't the Administration recently propose rules to make it easier for short-term travelers to get a waiver? On November 5, 2007, DHS did propose rules to change the process for applying for a short-term waiver. Unfortunately, however, these rules (if they become law) will actually make it more difficult to get a waiver. For more information, please see our Fact Sheet . To date, DHS has not issued and final regulations changing the rules for short-term travelers. Are there other medical conditions which make a foreign national inadmissible to the U.S.? The Immigration and Nationality Act prohibits foreign nationals who have a “communicable disease of public health significance” from obtaining legal permanent residence unless they obtain a waiver. Other diseases on the list include: chancroid, gonorrhea, granuloma inguinale, Hansen’s disease (infectious leprosy), lymphogranuloma venereum, infectious state syphilis, and infectious tuberculosis. How will Immigration know if I am HIV-positive? Part of the application process for applying for legal permanent residence includes undergoing a medical exam which includes a test for HIV. What if I’m HIV-positive but my viral load is undetectable? The HIV test used to determine whether or not you are HIV-positive is a test for HIV anti-bodies. Even if your viral load is currently undetectable, once you have tested positive for HIV anti-bodies, you will continue to test positive. Is there any way to obtain legal permanent residence even if I’m HIV-positive? Yes, foreign nationals who have certain qualifying relatives and meet other criteria, such as demonstrating that the United States government will not have to pay for the costs of medical treatment, may be able to obtain a waiver of the HIV ban. Asylees and refugees can apply for an HIV waiver even if they don’t have a qualifying relative. For more information on waivers see HIV Waivers . HIV-Based Immigration Applications For now, if you are HIV positive and planning to travel to the U.S. or planning to apply for legal permanent resident status you must still obtain a waiver of inadmissibility. Is it possible to get a “green card” based on the hardship I would face if I had to go back to my country because of my HIV-positive status? Prior to changes in the immigration law in 1996, it was possible for undocumented foreign nationals who had been in the U.S. for long periods of time and could prove extreme hardship if they would be deported to obtain legal permanent residence through “suspension of deportation.” That form of relief no longer exists. It was replaced by “cancellation of removal” which allows certain undocumented foreign nationals to obtain legal permanent residence, but only if they can show extreme and exceptionally unusual hardship to their United States citizen or legal permanent resident immediate relatives; hardship to self is no longer recognized as a ground to gain legal permanent residence. Is it possible to apply for asylum based on being HIV-positive? While the Board of Immigration Appeals has held that persecution because of sexual orientation can be a ground for asylum, there is no similar decision by an appeals court requiring asylum officers or immigration judges to consider HIV-related persecution as a basis for asylum. Nevertheless, there have been a few cases where individuals have been granted asylum solely because of their HIV status. In general to win asylum an individual must prove “persecution” not “hardship” so in most cases it would not be sufficient to show that HIV medication would not be available because the home country is economically under-developed. There have been many asylum cases granted where the applicant makes a claim based both on being gay and being HIV-positive. To learn more please read the article on HIV-based asylum applications. I have full-blown AIDS and believe that if I am returned to my country where there is no treatment available, I will not live very long. Is there any humanitarian basis for me to stay in the U.S. and receive treatment? In very limited circumstances, the Department of Homeland Security (DHS) can grant “deferred action” status meaning that it gives permission for a foreign national to remain in the U.S. temporarily because of an extremely compelling humanitarian circumstance such as a late stage terminal illness. Practices vary widely from one jurisdiction (geographic area) to another, and it has become even more difficult to obtain this limited relief after September 11.
Victoria Neilson is the Legal Director of Immigration Equality, a national organization fighting for equal immigration rights for the lesbian, gay, bisexual, transgender and HIV-positive community. Ms. Neilson runs Immigration Equality’s pro bono asylum project and provides technical assistance and mentoring on LGBT and HIV immigration issues to attorneys around the country. She is the primary author of The LGBT/HIV Asylum Manual, a comprehensive guide for attorneys, and she has published extensively on legal issues facing LGBT and HIV-positive immigrants and refugees. Ms. Neilson received her law degree from the City University School of Law and her bachelor’s degree from Harvard University. Ms. Neilson is co-chair of the New York City Bar Association’s Committee on AIDS and an active member of the American Immigration Lawyers Association. She is the former Litigation Director at the HIV Law Project in New York.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.