DHS Proposal to Permit B-1/B-2 Entry for HIV-Infected Visa Applicants
Posted Nov 16, 2007
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The U.S. Customs and Border Protection (CBP), an agency of the U.S. Department of Homeland Security (DHS), issued a proposed rule in the Federal Register on November 6, 2007, which would authorize issuance of nonimmigrant visas to certain HIV-infected foreign national applicants without the need for a waiver. This change would allow HIV-infected individuals to come to the U.S. for short visits if they met all other visitor visa requirements. This rule is meant to streamline the visa issuance process and would authorize these nonimmigrant foreign nationals to enter the U.S. as visitors for a period not to exceed 30 days. The rule also provides for a mechanism to assure these visitors depart once their short stays in the U.S. are over.
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Current Law Requires Waiver for Foreign Nationals with HIV
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Individuals infected with HIV are currently inadmissible to the United States. This is because HIV has been designated one of the "dangerous contagious diseases" that makes foreign nationals inadmissible to the U.S. These individuals must file waiver applications and obtain approvals of those waivers before nonimmigrant visas may be issued. These are reviewed on a case-by-case basis. In determining the waivers, various factors including risk of harm to society, reasons for the inadmissibility, and nature of the reasons for travel are reviewed and considered. Additionally, persons with HIV must establish that the danger to public health is minimal, that the possibility of transmission of the infection is minimal, and that any costs to U.S. government agencies will not be incurred without their prior consent.
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Other instructions clarify that nonimmigrant visas and short-term admission can be granted to persons with HIV who establish that their entry into the U.S. for up to thirty days would confer a public benefit that outweighs any risk to public health. A sufficient public benefit can include attending academic- or health-related activities, conducting temporary business, or visiting close family members.
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30+ Days for Nonimmigrant HIV Applicant Still Requires Waiver
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Persons with HIV seeking to enter for other reasons, like tourism or for longer periods, need waivers under the standards discussed above. In addition, blanket waivers are available for attendees of some designated international events such as AIDS-related conferences and symposia, or other events that may require the attendance of large numbers of HIV-infected individuals.
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Proposed B-1/B-2 Visa Issuance of 30 Days or Less for HIV Applicants
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DHS is proposing to allow foreign nationals infected with HIV to enter the U.S. as visitors (for business or pleasure) for a temporary period not to exceed thirty days. The proposed rule is meant to simplify admission of these visitors and to minimize costs to the U.S. government. In order to assure that there would not be any risk to public health, the DHS proposes conditioning the grant of a visa on the visitor's compliance with certain aspects of his/her activities while in the U.S., such as using proper medication when medically appropriate, avoiding behavior that can transmit the infection, and showing intent to leave the United States after 30 days. One must show that her/his condition is in a controlled state, that there is no anticipated need for additional medical care in the U.S., that s/he has an adequate supply of any needed medications, and that the visit is not going to create a cost to the U.S. or any state or local government agency without prior written consent.
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Visa applicants who do not meet the specific criteria of eligible applicants, or who do not wish to consent to the conditions imposed by this rule, may still elect to file a waiver application, which is available under current visa rules and regulations for people infected with HIV.
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Public Comment Invited for Proposed Rule
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The new rule is open for public comment, which must be received on or before December 6, 2007. Specific instructions on how to submit comments are available in the Federal Register. We at the Murthy Law Firm remind readers that this is only a proposed rule that will not go into effect until it is published in the Federal Register in its final form.