On January 4, 2010, the HIV ban on travel and immigration, which had been in place for two decades finally came to an end. With the end of the HIV ban, being positive is no longer an automatic ground of “inadmissibility.” For foreign nationals seeking to enter as tourists or short-term visitors, being positive should not be an issue at all. For lawful permanent resident applicants, being HIV-positive still could affect USCIS’s determination about whether you are “likely to become a public charge.” While doctors will no longer perform an HIV antibody test as part of the medical examination, the doctor could ask questions about your overall health which could lead the doctor to conclude that you are HIV-positive. Immigration and consular officials are permitted to take your health into account when determining whether you are likely to need government assistance, which can be a ground for denying a green card application.
Some Historical Information and Links to Important Documents
After a 60 day waiting period, the final regulations which were published by the Department of Health and Human Services on November 2, 2009, became law. The regulations remove HIV from the list of “communicable diseases of public health significance,” meaning that anyone seeking to enter the U.S. as a visitor can now do so without having to disclose his or her HIV status. The regulations also remove the HIV testing requirement for lawful permanent resident applicants.
As the lengthy bureaucratic process of publishing the regulations and issuing guidance on their implementation unfolded, there were several significant memoranda be issued by various U.S. government agencies about the end of the ban. The United States Citizenship and Immigration Services issued two memos about implementation of the end of the ban. On September 15, 2009 (USCIS) issued a memo which provided guidance on adjudicating cases before the January 4, 2010 change in the law. Specifically the memo instructed officers not to deny cases based solely on a person’s HIV-positive status, but rather to hold them in abeyance until the change in the law.
On November 24, 2009, USCIS issued further guidance to its officers on adjudicating cases after January 4, 2010. Namely, the memo re-iterates that HIV will no longer be a ground of inadmissibility, that waivers for individuals with HIV will no longer be required, that HIV anti-body testing will no longer be a part of the medical exam for lawful permanent resident applicants, and that, upon a motion with the proper fee, applications that were denied solely because the applicant was HIV-positive after July 2, 2009 (the date that the final regulations were published) may be reopened.
At long last, on December 17, 2009, the Department of State issued a Q and A explaining the end of the HIV ban. This is very important because individuals seeking visas abroad (either short-term or for permanent residence) must do so with U.S. consulates which are part of DOS, not USCIS. The guidance makes it clear that after January 4, 2010, HIV is no longer a reason to deny visas.
Nevertheless, we are continuing to see problems with implementation of the end of the ban, especially in consular processing. We have heard reports from some individuals about consulates continuing to require that the applicant have insurance in the U.S. as well as hearing about public charge problems with consulates. There is some DOS guidance on adjudicating cases since the ban has ended. Some of this guidance is problematic, especially since it spells out that “it may be difficult” for HIV-positive applicants to overcome a public charge finding. If you are having any problems with your consulate, please let us know.
Also, the Centers for Disease Control recently sent a letter to all doctors who conduct Immigration medical exams. USCIS has updated the I-693 form to eliminate the box for HIV testing. Some doctors, however, may continue to use the old form. If they do, physicians are instructed NOT to test for HIV and to simply fill in “no longer required” in the box.
The end of the HIV ban was the culmination of incredibly hard work by a broad coalition of immigration, HIV, LGBT and human rights organizations. Together, we mobilized over 23,000 comments in favor of lifting the ban and fewer than 550 comments against lifting the ban. Significantly, over 400 organizations submitted or signed onto comments calling for an end to the ban and there were no organizational comments that asked HHS to keep the ban in place. Immigration Equality was among the organizations thatsubmitted comments in full support of the proposed regulations.
None of this would have been possible without the leadership of Senator John Kerry, Congresswoman Barbara Lee, and former Senator Gordon Smith, who led the fight in Congress in 2008 to remove the statutory HIV ban. Immigration Equality has also convened a broad-based coalition that has continued to push for full equality under U.S. immigration law for people living with HIV.