U.S. Exclusion of HIV+ Visitors and Immigrants Continues


U.S. Exclusion of HIV+ Visitors and Immigrants Continues

Being Alive Newsletter; July 1992
Walt Senterfitt

One year ago, the Bush-Reagan administration robbed us of a significant and hard-won victory. Sponsored by Rep. Barney Frank of Massachusetts, the Immigration Reform Act of 1990 swept away many prejudicial exclusion provisions inserted over the years by various "reactionaries-of-the-day" from Pat McCarran and Joseph McCarthy to Jesse Helms. The use of homosexuality to preclude travel or immigration was erased outright. The authority to remove AIDS and HIV infection from the exclusion list was given to the Secretary of Health and Human Services (Dr. Louis Sullivan), who announced his intention to do so in regulations that were to take effect June 1, 1991.

Rightwingers outside (led by Helms, Dannemyer, Wildmon, Shelton) and inside the government (led by now-Attorney General William Barr) mobilized against the change and Sullivan decided to join them. At first, he withdrew the new regulations "for six weeks of further study and comment." Sullivan then extended this time table last August to "permanent further study," i.e. the new regulations were killed. The HIV-excluding Helms Amendment to the immigration laws remains intact.

The INS has issued no new regulations substantively increasing anyone's rights. There have been only a few procedural memos relating to the limited options of requesting waivers from exclusion. Waivers are possible only for HIV+ people who:

- are applying for a tourist visa of 10 days or less to attend a specific conference,

- are spouses, children, or parents of someone who is either a U.S. citizen or an eligible permanent resident,

- are political or war refugees, or

- are in the process of pursuing an amnesty-related citizenship application filed before that program expired.

To have a waiver application considered, one must show one of the following:

- there are humanitarian reasons compelling the waiver;

- it is in the public interest of the US to keep you here or let you come;

- there are compelling reasons of family unification.

In addition, one must demonstrate all of the following:

- there is no risk to the public health of the US in the person's being here;

- there is no risk of transmission of HIV to others; and

- no federal or state agency could possibly have to bear any part of the cost of medical care (this is usually interpreted to mean the person must have insurance).

Attorneys report that another applicable provision of the immigration law, requiring proof that one will not become a "public charge," is being applied with new rigor to exclude people, rather than directly invoking the anti-HIV provisions.

The waiver applications are processed very slowly. One problem is that a single INS Associate Commissioner in Washington has to personally approve every application; the regional offices can only recommend. A number of people have died while awaiting determination. The bittersweet "good news" is that if one is already here and has properly applied for amnesty or refugee status to which one would otherwise be entitled, one can remain here with employment authorization while awaiting a decision.

An ACT UP Immigration Working Group is planning various actions to keep the immigration issue before the world press and the participants in the Amsterdam conference. These plans include an opening march past the consulates of the US and other countries practicing exclusion, leaving some coffins at each one, and a closing demonstration at the Anne Frank House and Museum.


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©1992. AEGIS.