LIFTING OF THE HIV TRAVEL BAN
BACKGROUND
For more than 15 years, the United States has had one of the most restrictive immigration policies in the world regarding non-citizens with HIV — they were not allowed to enter the U.S. as short-term travelers or as long-term residents seeking green cards, unless they completed a special waiver very difficult to obtain. In July 2008, Congress passed a law that repealed the statutory HIV ban. In November 2009, the Department of Health and Human Services/Centers for Disease Control and Prevention (HHS/CDC) published final regulations removing HIV from its list of communicable diseases of public health significance, meaning that as of January 4, 2010, being HIV-positive is no longer relevant to one’s immigration applications. HHS also amended its rules for immigration medical examinations; removing HIV testing from the list of requirements.
Why has it taken the United States so long to implement changes for non-U.S. citizens who are HIV-positive to visit or live in the United States?
On July 30, 2008, President Bush signed the United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, which amended the Immigration and Nationality Act (INA) to eliminate language that specified HIV infection as a public health condition that can prevent non-U.S. citizens, with HIV/AIDS, from entering the United States without first obtaining a waiver from the Department of Homeland Security (DHS).
The INA did not change the regulatory framework under which HIV is handled for visa purposes. Because HIV was still on the U.S. Department of Health and Human Services/Centers for Disease Control and Prevention’s (HHS/CDC) list of communicable diseases of public health significance, HIV-positive applicants who applied for United States visas or entry into the United States remained inadmissible and still required waivers from DHS.
Why is the CDC removing HIV infection from both the definition of communicable disease of public health significance and the scope of the medical examination for visa purposes?
On July 2, 2009, CDC proposed a rule change to amend Title 42 of the Code of Federal Regulations (CFR), Part 34, by removing HIV from the list of communicable disease of public health significance and from the scope of the medical examination for aliens, which was published in the Federal Register as a Notice of Proposed Rulemaking (NPRM) for a 45-day public comment period. This period ended on November 2, 2009 and CDC published a Final Rule in the Federal Register which contains no changes from the NPRM; this became effective January 4, 2010.
The CDC determined that while HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread through casual contact.
How does this new regulation change the visa application process for applicants who are HIV-positive?
Until the final rule went into effect on January 4, 2010, non-U.S. citizens who are HIV-positive could not be admitted to the United States unless granted a waiver by the Department of Homeland Security.
Effective January 4, 2010, visa applicants required to receive medical examinations will not be tested for HIV, and HIV-positive visa applicants will not be found ineligible for visas 212(a)(1)(A)(i) of the INA and will not need waivers from the Department of Homeland Security (DHS) prior to being issued visas, if otherwise qualified.
Although applicants with HIV can no longer be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA beginning January 4, 2010, they still must overcome INA Section 212(a)(4), public charge, by demonstrating to consular officers that they will have means of support in the United States and that they, therefore, will not need to seek public financial assistance.
How will this change affect HIV-positive applicants who have previously been refused a visa?
Effective January 4, 2010 applicants who were previously refused visas only under INA Section
212(a)(1)(A)(i) and only because they were HIV positive became eligible for a visa. These applicants may now reapply for a visa. A consular officer will then determine whether or not the applicant is qualified.
How will this change affect how applicants complete their visa applicant forms?
The DS-156 Nonimmigrant Visa Application, DS-160 Online Nonimmigrant Application, and DS-230 Application for Immigrant Visa and Alien Registration forms contain the following question: “Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug user or addict?” Effective January 4, 2010, HIV- positive visa applicants will no longer have to answer “Yes” to this question based solely on their HIV status. Applicants who are HIV-positive, and can otherwise answer “No” to the question, should answer “No” beginning on January 4, 2010.
Are there any restrictions under this new rule?
No. After the final rule went into effect on January 4, 2010, HIV-positive visa applicants will no longer be ineligible to receive visas under Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA.)
How will non-US citizens with HIV find out about this new change?
All U.S. embassies and consulates will disseminate information on the final rule to the general public as necessary.
Consular officers have begun informing any visa applicants with HIV infection who applied for and were found ineligible for visas prior to January 4, 2010 about the final rule. Applicants previously refused visas under Section 212(a)(1)(A)(i) of the INA may reapply for visas.
Will the rule change increase the risk that average Americans will contract HIV?
The CDC has determined that allowing non-U.S. citizens with HIV infection to enter the United States will not pose a health risk to the American public because HIV is preventable and not spread through casual contact or day-to-day activities.
Please refer to the CDC’s website for further information and guidance:
http://www.aids.gov/federal-resources/policies/immigration/
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