Travel and Immigration to U.S. Possible for Some Applicants with HIV  Posted Aug 08, 2008; updated Aug 18, 2008
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On July 16, 2008, the United States Senate reauthorized the President's Emergency Plan for AIDS Relief (PEPFAR) through the passage of the Tom Lantos and Henry J. Hyde U.S. Global Leadership against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (S. 2731). President Bush signed the bill on July 30, 2008. In addition to authorizing $48 billion over a five-year period to fight Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency Syndrome (AIDS), and other diseases abroad, the bill also repeals a 1987 statute that bans travel and immigration solely on the basis of one's being infected with HIV/AIDS.
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HIV Waivers Required under the Current System
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Under current law, HIV/AIDS is automatically a condition "of public health significance" that disallows entry into the United States. In fact, HIV is the only communicable condition specifically listed as a medical basis for denial of admission into the U.S. unless the infected person obtains a waiver. The only way an individual with HIV/AIDS can enter the U.S. on an immigrant visa under current law is through a waiver showing family ties in the U.S. and factors that demonstrate that her/his entering poses a minimal danger to the public health, the communicability of the infection is minimal, and the government will not incur any costs due to the individual's admission. Even a temporary visitor needs to demonstrate a minimal risk, coupled with a public or humanitarian interest, in order to obtain a waiver to visit even for 30 days or less.
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Based on these criteria, HIV waivers have been determined on a case-by-case basis and have often proven to be difficult to obtain. MurthyDotCom and MurthyBulletin readers may recall a discussion of HIV waivers in our November 16, 2007 article, DHS Proposal to Permit B-1/B-2 Entry for HIV-Infected Visa Applicants.
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HIV Ban Lifted by the U.S. Senate
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The new law treats HIV/AIDS like any other communicable disease that poses a potential public health risk. The Secretary of Health and Human Services (HHS) will have the discretion to determine whether an individual poses a risk to public health notwithstanding the specific disease the individual has contracted. Despite this new legislation, HHS still specifically lists HIV as a communicable disease of public health significance. It is unclear whether S. 2731 will reduce the entry barriers for immigrants with HIV or simply create an administrative loophole that keeps these restrictions virtually impossible to overcome.
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Conclusion
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Critics of the HIV travel and immigration ban praise the actions of the U.S. Senate and the President in repealing a law characterized as discriminatory towards those infected with HIV/AIDS. Although the new law could still deny admission to one infected with HIV/AIDS, such a denial should be based on the more general issue of whether s/he poses a public health risk, rather than whether the individual has a specific medical condition or disease. The Murthy Law Firm will continue to monitor these cases to determine whether this legislative relief actually will result in reducing entry barriers for immigrants who are HIV positive.