Friday, October 17, 2008

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To the Editors: Re: “Feds streamline rules for HIV-positive visitors” (news, Oct. 3)
We were disappointed when we saw the Blade’s uncritical coverage of the Department of Homeland Security’s (DHS) press release, which claimed that DHS has “streamlined” the rules for short-term, non-immigrant visitors.

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The Blade’s coverage fully accepted DHS’s claim that this is a step forward for people with HIV, without asking why DHS is issuing a new waiver rule at all when Congress voted to repeal the HIV travel and immigration ban in July, and the Department of Health and Human Services (HHS) has stated that it is actively working to remove the ban. 

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Both the timing and content of the rule change are deeply problematic.

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Under the new rules, a short-term traveler must meet 12 stringent criteria that impose unnecessary burdens on HIV-positive travelers and continue to stigmatize those living with HIV. The “streamlined” waiver application requires short-term travelers to meet a heavier burden than HIV-positive foreign nationals seeking permanent residence in the U.S.

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Among other things the waiver applicant must prove: that he or she is traveling with an adequate supply of antiretroviral medications (or that they are not medically necessary); that he or she has health insurance that is accepted in the United States and will cover any potential medical care here; and that he or she does not pose a public health risk. These criteria are inconsistent with current medical knowledge of HIV transmission and treatment and continue to treat HIV unlike any other medical condition.

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Additionally, a traveler who avails him- or herself of the “streamlined” waiver must give up the right to apply for a green card from within the United States under most circumstances.

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What do HIV-positive travelers gain from the rule change? By DHS’s own account, the “streamlining” provided by this rule simply shaves off 18 days in processing time by allowing Department of State consular officers to make decisions on waivers without sending them to DHS for approval.

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The fact that this “streamlining” shifts decision-making about the HIV waiver from DHS to local consular officers in other countries is in itself problematic. Consular officers already wield enormous power in the visa application process. They are not doctors and do not have the medical knowledge to assess whether a traveler needs medication or whether the traveler will pose a public health risk. Consular interviews generally last only a few minutes and often take place in public settings that do not allow for adequate safeguarding of applicants’ confidentiality.

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When DHS proposed this “streamlining” rule a year ago, Immigration Equality led the call for groups to submit comments objecting to its harsh requirements. We objected to the rights that HIV-positive travelers have to give up to use this “streamlined” process, we objected to the stringent criteria they have to meet; but mostly we objected to the stigma that comes with treating HIV differently from all other medical conditions.  This new rule is not progress. The new rule makes a bad procedure into a formal regulation at the very moment when all eyes are on the administration to eliminate the HIV ban once and for all.

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As Rep. Barbara Lee, leader of the House effort to lift the HIV travel ban, said in an official statement to Immigration Equality after DHS Secretary Chertoff announced the new rule:

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“I am disappointed that the administration has decided to move ahead and finalize this rule to clarify the visa waiver process for HIV-positive short-term visitors to the United States. The rule itself remains fundamentally flawed because it is grounded on an unjust and discriminatory policy that has no basis in public health. The administration has acknowledged that it is taking steps to remove HIV/AIDS from the list of diseases that trigger automatic inadmissability into the United States.
Rather than continuing forward with this unnecessary and potentially harmful visa waiver process rule, the president should actively work to ensure that his administration eliminates HIV from this disease list before he leaves office in January.”

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CDC Director Julie Gerberding stated in a letter to the Washington Post, “this administration is committed to removing HIV infection as soon as possible.” We hope that the administration will shift its sights from issuing regulations to add requirements for obtaining HIV waivers and adding illnesses to the HHS list, to actually removing the HIV ban as it claims to want to do. For travelers and immigrants with HIV suffering under the ban, the change can’t come soon enough.

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JULIE KRUSE
Policy director, Immigration Equality
Washington

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VICTORIA NEILSON
Legal director, Immigration Equality
New York