Washington Blade - November 22, 2007
Lou Chibbaro Jr

The U.S. Department of Homeland Security (DHS) last month issued a 15-page Notice of Proposed Rulemaking that calls for "streamlining" the process for foreigners applying for a temporary waiver from a federal law that bans foreign nationals infected with HIV from entering the country.

The proposed rules would make it less time consuming and less complicated for HIV positive individuals to apply for a U.S. visit as tourists or for business purposes. But they would also impose new conditions, including a requirement that an HIV positive visitor give up the right to seek permanent U.S. residence status associated with political asylum.

The more time-consuming application process under the existing rules would remain in place, and persons with HIV seeking to visit the U.S. could opt for that process rather than agree to the more restrictive conditions under the new rules.

However, officials with the gay advocacy groups Immigration Equality and Gay MenÆs Health Crisis said potential visitors might choose the newer application process without fully understanding the problems they could encounter and without knowing another option is available to them.

"As written, the [new] rule could leave individuals with HIV who obtain asylum in the U.S. in a permanent limbo, forever barred from obtaining legal permanent residence, and therefore cut off from services, benefits, and employment opportunities," said Nancy Ordover, an official with Gay MenÆs Health Crisis, a New York group that assistants people with HIV.

Ordover was referring to a longstanding U.S. policy of allowing foreigners suffering from persecution in their home countries, including anti-gay or AIDS related persecution, to apply for U.S. political asylum if they can prove their lives could be in danger if forced to return to their homeland.

"It seems very disingenuous that the government is claiming to make things easier for people with HIV, but itÆs really compelling them to forfeit their rights," she said.

A spokesperson for the DHS did not return a call seeking comment by press time.

Victoria Nelson, legal director of Immigration Equality, another New York based group that assists gays and people with HIV on immigration matters, said that despite their claim to "streamline" the application process, the proposed new rules leave unchanged most of the requirements of the existing rules.

HIV-positive visitors still must show that their medical insurance would cover any doctor or hospital visits in the U.S. and require them to "prove" that they wonÆt engage in behavior that would put the American public at risk, Nelson said.

"More than two decades into this epidemic, the United States continues to stigmatize people with HIV and treat this illness unlike any other virus," Nelson said. "Creating insurmountable hurdles to travel does nothing to protect the American public from HIV," she said.

The Notice of Proposed Rulemaking issued by the DHS says President George W. Bush initiated the new rules in a speech at the White House last December commemorating World AIDS Day.

The document says the president directed the State Department and the DHS to "establish a more streamlined process for issuance of a nonimmigrant visa and temporary admission to the United States of aliens who are inadmissible to the United States due to HIV infection."

The rulemaking proposal notes that the inadmissibility of people with HIV stems from a 1993 law passed by Congress and signed by President Bill Clinton amending the U.S. Immigration and Nationality Act. The changes brought about by the 1993 law prohibit any foreigner from entering the U.S. "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome."

Critics of the law note that it makes the U.S. one of only 13 countries in the world, including Saudi Arabia and Sudan, that ban travel for people who are HIV-positive.

The law surfaced in the news last year when organizers of the Gay Games, the international gay athletic competition held in Chicago, grappled over how to help visitors from Europe and other continents apply for HIV waivers to enable them to enter the U.S. to attend the event.

Under the existing rules, a decision on whether to grant a waiver to the ban on HIV-positive visitors is made on a case by case basis by the State Department, the DHS, or, in certain instances, by a U.S. consular officer in the applicantÆs country.

Officials making the decision must determine that "danger to the public health in the U.S. would be minimal," the possibility of the visitor transmitting the virus is minimal, and any expenses for medical care in the U.S. would be born by the visitor through his or her medical insurance.

The current rules also limit visits to the U.S. to 30 days and allow such visits for tourism or business or for other purposes deemed appropriate, such as attending a scientific or professional meeting or special event, or visiting a family member. A special notation indicating the visitor has received an HIV exemption by the U.S. is stamped on his or her passport.

The new rules would leave all of these criteria in place but would fold them into a "categorical" application process that could be decided by a U.S. consular official in the visitorÆs home country rather than waiting for a decision by an official in Washington.

However, the new rules include certain criteria that are not included in the existing rules, such as the condition barring a visitor from obtaining permanent resident status

They also include a requirement that an applicant demonstrate to the consular officer that he or she is in a "controlled state of HIV such that there is no anticipated need for additional medical care" in the U.S.

In addition, the new rules call on the consular officer to determine the possibility that an HIV-infected visitor would transmit HIV to someone else is "minimal," and that they have an adequate supply of antiretroviral drugs to last their entire stay in the U.S.

"[T]he question arises, what will count as evidence?" a Gay MenÆs Health Crisis analysis of the proposed new rules asks. "Are [consular officers] truly equipped to make determinations regarding medical etiology, medication, transmission, public health, etc.?"

The new rules donÆt overtly ban a visitor with HIV from applying for U.S. political asylum, but they require such a visitor to waive any option for staying in the U.S. longer than 30 days and for seeking permanent resident status through the so-called "green card" process.

"What this means is you can apply for asylum but you could not get the ultimate benefit of asylum-permanent U.S. resident status," said Adam Francoeur, an attorney with Immigration Equality.

Officials with GMHC and Immigration Equality said they are preparing comments calling for changes in the proposed rules, which they will submit to DHS before the Dec. 6 deadline for public comments.

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