Immigration Equality - --deprecated--Senate Vote Fact Sheet

HIV immigration and travel ban fact sheet

The Senate’s vote to lift the HIV immigration and travel ban

"Immigration Equality has been committed, for over a decade, to repealing this ban
that disproportionately affects LGBT people. I am thrilled to report that after so many
years of discrimination, the statutory ban has ended."
Rachel B. Tiven, Executive Director

On July 30, 2008 President Bush acted to end the statutory ban on entry to the U.S. by people with HIV. Until now, only HIV was singled out in the immigration law for exclusion. In signing the President's Emergency Plan for AIDS Relief (PEPFAR), Bush repealed the statutory ban on HIV-positive tourists and immigrants, and restored jurisdiction to the Department of Health and Human Services (HHS) to determine whether HIV is a "communicable disease of public health significance."

All eyes are now on HHS to remove HIV from its list and truly lift the ban. Immigration Equality has continued to be a leader in this fight. On DATE, we sent HHS Secretary Bill Leavitt a letter which was signed by 185 health, legal, and civil rights organizations urging swift action. Secretary Leavitt just responded stating that the CDC is “working to amend the regulation to remove HIV from the list.” Likewise, on October 6, 2008, CDC Director Julie Gerberding stated in a letter to the Washington Post, “this administration is committed to removing HIV infection as soon as possible.”

At the same time we are seeing these positive signs from the Administration, we are also troubled by conflicting signals we have seen. Last fall, the Department of Homeland Security (DHS) issued proposed regulations which claimed that they would “streamline” the process for short-term HIV-positive travelers to obtain waivers to the U.S. Immigration Equality, and hundreds of other organizations and individuals submitted comments opposing the rule change, but on October 6, 2009, DHS issued the changes as a final rule. Despite this purported intention, the “streamlined” waiver process actually imposes 12 stringent criteria on travelers who make use of the waiver, and in most circumstances requires the HIV-positive traveler to give up the ability to apply for legal permanent residence from within the United States. We don’t believe this rule actually “streamlines” the process and are disappointed that the Administration is focusing any effort on amending its waiver policies rather than just lifting the ban as Congress has mandated.

Likewise, HHS has just issued new regulations which amend the list of “communicable diseases of public health significance,” taking a “risk based approach” and adding air-borne, quarantinable diseases. Although they have amended the exact section of the regulations where HIV is listed, HHS has not removed HIV from the list.

We hope that Secretary Leavitt and Director Gerberding are right and that the HIV ban will be lifted soon. Stay tuned here for updates on any further developments. Meanwhile, if you are HIV-positive and unsure how recent changes in the law affect you, please contact our legal staff.

How does this affect me right now?

The Senate’s version of PEPFAR has not yet become law. To remove the ban, the bill must first pass in the House and be signed into law by the President. Then the Department of Health and Human Services must remove the ban from its list of illnesses which make non-citizens "inadmissible." Right now, if you are HIV positive and planning to travel to the U.S. or planning to apply for legal permanent resident status you must still obtain a waiver of inadmissibility. For more information on HIV Waivers please read this section of our website.

How will this affect me in the near future?

If you are HIV-positive and thinking of travelling to the US or applying to become a legal permanent resident within the next six to twelve months, you should speak to an attorney about how this bill might affect your situation.

If the Senate’s version of PEPFAR becomes law, it will take at least 90 days to go into effect after it is signed by the President. After that, the decision of whether or not HIV should be a ground of inadmissibility would lie with the Department of Health and Human Services (HHS).

Currently HHS considers HIV to be a “communicable disease of public health significance.” As such, under current HHS policy, HIV continues to be a ground of inadmissibility. However, in 1993 when Congress codified the current HIV policy into law, it went against the recommendation of the Public Health Service and HHS which had stated that a ban neither serves the public interest, nor protects the public health.

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