Washington Blade - July 25, 2008
Lou Chibbaro Jr.

The action by the House came one week after the Senate approved an identical version of the AIDS relief measure by a vote of 80 to 16.

The bill, which renews the highly popular U.S. foreign aide program known as the President's Emergency Plan for AIDS Relief (PEPFAR) now goes to President Bush, who has said he plans to sign the legislation.

But the president and his Secretary of the Department of Health and Human Services (HHS), Mike Leavitt, must approve one more administrative action to bring to an end the U.S. ban on HIV-positive visitors and immigrants, and the White House and Leavitt's office have yet to say whether they will take that action.

In 1987, HHS used its existing legal authority to add HIV to a list of communicable diseases that disqualify foreign visitors from entering the country because persons afflicted with the diseases were considered a threat to the U.S. population. The 1987 HHS action also barred nearly all foreign nationals with HIV from applying for permanent U.S. resident status as immigrants.

Six years later, in 1993, when HHS considered reversing its 1987 action, Congress intervened by enacting the HHS administrative policy banning HIV-positive visitors and immigrants into law.

Now, with the president poised to sign the bill repealing the 1993 law, HHS must also repeal its internal, administrative policy before visitors with HIV would be allowed entry into the country and foreign nationals with HIV would be eligible for residency status as immigrants.

An HHS spokesperson this week promised to make inquires into Leavitt's position on the issue of repealing the HIV ban, but the spokesperson did not get back with additional information by press time. A White House spokesperson did not return a call seeking comment.

"The legislation Congress has passed will move us from the emergency phase to the sustainability phase in fighting AIDS, tuberculosis and malaria," said Speaker of the House Nancy Pelosi (D-Calif.), after the House voted to approve the PEPFAR bill.

"It will authorize $48 billion over five years to provide life-saving HIV/AIDS treatment and prevention for men, women and children in the poorest countries of the world," she said.

Pelosi also noted that the bill would eliminate the HIV travel and immigrant ban, a policy that Pelosi and Democratic leaders, along with many Republican lawmakers in the House and Senate have long opposed.

"Congressional backing for the repeal of this unjust and sweeping policy that deems HIV-positive individuals inadmissible to the United States is a huge step forward for equality," said Joe Solmonese, president of Human Rights Campaign, a national gay rights group that lobbied Congress to repeal the ban.

"The HIV travel and immigration ban performs no public health service, is unnecessary and ineffective," Solmonese said.

The 1993 immigration law and the HHS policy directive putting the HIV visitor and immigrant ban into place allow for some exceptions. But groups like Immigration Equality, which advocates for immigrants who are gay or who have HIV, have said the exceptions are limited and have helped only a small number of HIV-positive foreign nationals seeking access to the U.S.

Under the 1993 law and the HHS policy, foreign nationals seeking to visit the U.S. can obtain a temporary waiver from the ban, which allows short-term visits for tourism or business purposes. Foreign nationals seeking a waiver must register their names and HIV status with U.S. consular offices in their home countries in a process that immigration activists say could violate privacy rights. Waivers also place certain limitations on HIV-positive visitors.

The law and policy allows foreigners with HIV to be eligible for immigrant status if they can demonstrate that an immediate family member, such as a spouse, parent or child, who already has legal U.S. immigrant status or citizenship, is dependent upon them for care and support. Activists say U.S. immigration officials rarely grant this exemption and that it is off limits to same-sex partners whose relationships are not recognized under U.S. law.

In an editorial published in its July 24 edition, the Washington Post called the HIV visitor and immigrant ban "a relic of the myth and hysteria surrounding HIV-AIDS in the late 1980s" and said "HHS officials should not hesitate to remove this blot from the country's immigration history."

Some Capitol Hill insiders have speculated that the Bush administration might decide to leave the HHS policy in place, preferring to let the next president decide whether to repeal it. That would leave the ban in place until at least late January.

A spokesperson for Sen. Barack Obama (D-Ill.), the presumptive Democratic presidential nominee, said Obama opposes the ban and would take action to end if he's elected president.

A spokesperson for the campaign of Sen. John McCain (R-Ariz.), the presumptive Republican presidential nominee, did not return a call seeking McCain's position on the issue.

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