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Immigration and HIV

Fall 2006

Foreign citizens living in the U.S. frequently encounter challenges related to their immigration status. Who hasn't heard the plight of a coworker, friend, or family member whose application for a visa, work permit, or green card has been inexplicably lost, delayed, or denied? And any person, foreign or native-born, may experience health-related difficulties -- especially those living with HIV.

But people with HIV who attempt to come to the U.S. face many more obstacles than those who are HIV negative. The daunting challenge of navigating the U.S. immigration system and its voluminous paperwork rises to a new level of complexity and delay when living with HIV. Someone in this situation confronts discrimination both for being a non-citizen of the U.S. and for having HIV.


The HIV Ban

Individuals who wish to obtain lawful immigration status in the U.S. must establish that they are not "inadmissible," or not barred under U.S. law. The Immigration and Nationality Act (INA) lists the grounds of inadmissibility, which prior to 1996 were known as grounds of "exclusion." Specific health-related problems, including infection with HIV, render a non-citizen inadmissible. This law is sometimes referred to as "the HIV ban" and is the reason that the U.S. has not been selected to host the International AIDS Conference in 16 years. U.S. immigration law permits only limited exceptions (waivers) to this rule. The "comprehensive immigration reform" currently before Congress does not propose lifting the HIV ban.

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Early History: Excluding the "Undesirable"

Non-citizens have been excluded from the U.S. for health-related reasons since 1882, when "idiots" and "lunatics" were prevented from landing on U.S. soil. In 1891, "persons suffering from loathsome or contagious disease" were added to the list of excludable persons, and a medical examination was required of all non-citizens arriving at ports of entry. In 1961, the health-related legal language changed to "aliens who are afflicted with any dangerous contagious disease." We refer nowadays to "communicable diseases of public health significance." Throughout the 20th century, immigration laws relating to health expanded and changed, but the purpose remained the same: to keep medically compromised people, or those otherwise "undesirable" for health-related reasons, from entering the U.S.


The Political Battle of the 1980s

Twenty years ago, the Center for Disease Control's Public Health Service (PHS) identified seven "dangerous contagious diseases" -- chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, infectious syphilis, leprosy, and tuberculosis -- that would bar a non-citizen from entering the U.S. The PHS also recommended including AIDS as a "dangerous contagious disease," because AIDS was a sexually transmitted disease (STD) as serious as the other diseases identified.

Opposition voices in the non-profit, activist, and health communities criticized the recommendation as contributing to discrimination against people with HIV. They also feared characterizing AIDS as a "dangerous contagious disease" would misinform the public about AIDS and how AIDS was actually transmitted. The controversy inflamed Congress, but resulted in AIDS -- and eventually HIV -- being added to the PHS list by Congress in 1987.

But the controversy continued to simmer through the end of the '80s. Members of the international community and even of Congress continued to voice opposition to the prohibitive policy. International NGOs refused to attend the 1990 International AIDS Conference in San Francisco, as well as the International Congress of the World Federation of Hemophilia in Washington, D.C. As the decade drew to an end, Congress attempted to pass a law restoring to PHS the discretion to identify or remove HIV/AIDS from its list of "dangerous contagious diseases," but the PHS objected. The PHS claimed that only Congress had the authority to remove HIV from the list of "dangerous contagious diseases," since it was an act of Congress that had originally designated HIV/AIDS as such. HIV/AIDS remained on the list.


The Debate Continues

In 1991, the PHS reversed course and decided to remove almost all diseases, including HIV, from its list of "dangerous and contagious diseases." In response to immediate and harsh criticism concerning the proposed removal of HIV from the list, the PHS explained that HIV -- like the other STDs it proposed to delete from the list -- was not transmitted casually, and that "the risk of (or protection from) HIV infection comes not from the nationality of the infected person, but from the specific behaviors that are practiced." The PHS used its medical expertise to conclude that "admission of people with HIV would not significantly increase the risk of HIV infection to the U.S. population."

Despite this logic, there was strong opposition to the proposed deletion. Thousands of letters in favor of the HIV ban flooded the administration, and Republican representatives formally requested that the Secretary of U.S. Health and Human Services not lift the HIV ban. The PHS yielded, and, again, the HIV ban remained.

Hope for the opposition rose during Bill Clinton's presidential campaign. Candidate Clinton's plan for immigration reform promised to acknowledge the expertise of the medical community at PHS and allow them to lift the HIV ban. After Clinton won the election in 1992, the PHS took regulatory steps to do exactly that.

President Clinton's plan reignited the dispute, with disastrous results. Members of Congress focused their objections around the protection of American public health and health care costs. Conservatives claimed that lifting the ban would harm public health by spreading infection. Lifting the ban would also purportedly have a significant financial impact (though non-citizens with other expensive medical conditions were not banned) and would be unfair to the many Americans who did not have access to adequate health care

Despite opposition from some politicians who spoke out against the ban, its underlying context of hatred, and the illogic of Congressional politics trumping medical expertise, Congress acted to prevent the President from removing HIV from the PHS list of diseases. Instead, Congress formally amended the INA itself to include specific language about HIV infection in the health-related grounds of exclusion. This amendment stripped the PHS of any existing or future discretion to decide whether HIV would continue to be a "communicable disease of public health significance." For the first time, being HIV-positive was specifically identified in the Immigration and Nationality Act as a statutory bar to entry.


The HIV Ban in the Last Decade

The mid-1990s witnessed another major reform of the immigration laws, with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). While IIRIRA did not directly affect the HIV ban, it drastically changed the immigration laws, effectively reducing the already limited immigration options available to people with HIV.

But a few encouraging changes have occurred in the last ten years. In 1996, the legal office of the former Immigration and Naturalization Service (INS) advised immigration officers and judges to grant, where legally appropriate, some forms of immigration relief (such as asylum, stays of deportation, etc.) to qualified applicants with HIV. In 1999, at the behest of the Surgeon General, the INS modified its practice to make it easier for HIV-positive refugees abroad to obtain an HIV waiver. In 2000, the Immigration and Nationality Act was amended to offer more generous waivers to people with HIV in select groups, such as certain applicants from Vietnam, Cambodia, and Laos; non-citizens involved in national lawsuits challenging implementation of a 1980s amnesty program; domestic violence survivors; and victims of human trafficking or other crimes.

Despite these improvements, 13 years after it was codified into law, the HIV ban remains in place.


Comprehensive Immigration Reform

In recent months, both the U.S. House and the Senate have proposed new immigration legislation. The legislation does not propose lifting the HIV ban. In fact, some so-called "positive" provisions disqualify people living with HIV. For example, the more moderate Senate bill contains an "earned adjustment" legalization program, which provides a path to legalization for undocumented non-citizens who meet certain requirements, including more than five years of physical presence and more than three years of employment in the U.S. (the House bill contains no such program). But the Senate bill would bar applicants with HIV from earned adjustment legalization. The legislation in effect classifies people living with HIV/AIDS in the same category with those accused of criminal behavior, terrorism, and threats to national security.


Conclusion

In a 2004 joint statement on "HIV/AIDS Related Travel Restrictions," UNAIDS and the International Organization for Migration officially condemned HIV-motivated bans, debunked the myth that such bans protect public health and challenged the assumption that non-citizens with HIV bring about undue economic burdens on host countries. Additionally, a recent World Health Organization report characterized the evolution of HIV "from that of an inevitable, fatal condition to that of a manageable chronic illness," indicating that people with HIV are living longer, more productive lives.

But non-citizens living with HIV/AIDS continue to endure dual discrimination, and the ongoing debates in the U.S. surrounding immigration reform and health care costs do not make it any easier. Congress is not likely to improve immigration laws and policies that harm non-citizens with HIV until public attitudes improve. Contact a local immigrants' rights or AIDS service organization to find out how you can help. For more information and links to other organizations dealing with HIV and immigration, visit www.nationalimmigrationproject.org.

Fiona McKinnon is a Haywood Burns Fellow and Ellen Kemp is a legal worker at the National Immigration Project of the National Lawyers Guild.


Entering the U.S. With HIV/AIDS

Two major sets of rules prevent non-citizens from entering or staying in the U.S.: inadmissibility and deportability. HIV is not a ground of deportability, but it is a ground of inadmissibility. This means that the Department of Homeland Security (DHS) can "remove" someone from the U.S. for HIV only if the person entered without government permission. The DHS cannot deport someone for becoming HIV-positive, or for having an AIDS diagnosis, if that person entered on a valid visa or now has lawful permanent residence (a green card).

But the DHS does bar many people living with HIV from entering the country. This includes temporary visitors, such as tourists, students, workers, and those who intend to live in the U.S. permanently. There is another potential barrier for many HIV-positive non-citizens: the "public charge" ground, a concept in immigration law which refers to individuals who cannot support themselves and depend on public benefits for income.

People with HIV may qualify for a special "exception," also known as a discretionary waiver. (The waiver is "discretionary" because the government is not required to approve it.) Several different waivers exist, depending on whether the individual is seeking to enter the U.S. temporarily or permanently, or is fleeing persecution. These waivers share an important characteristic: applying for one will lengthen the processing time and increase the red tape of any application. (This description covers several common waivers, but is not completely comprehensive and is not intended as legal advice.)


Waivers for Visitors under INA §212(d)(3)

Since 1989, the government has allowed people with HIV to enter the U.S. for certain purposes, such as to attend a conference, conduct business, visit close relatives, or receive medical treatment. Agents are instructed to provide waivers to those non-immigrants "who establish that their entry in the United States would confer a public benefit which outweighs any risk to the public health." This waiver is good only for short visits of less than 30 days.

In 1990, the first Bush administration added a second kind of waiver. This waiver allows the State Department to grant blanket 10-day visas under certain circumstances to persons attending a professional, scientific, or academic conference in the United States. These visas do not require an applicant to declare his or her HIV status.

Many people ask how the DHS would become aware that a non-citizen has HIV. Although the DHS does not test visitors for HIV when they try to enter the U.S., everyone who is not a U.S. citizen or permanent resident must obtain a visa to enter legally. People coming to the U.S. for study, work, or a visit must fill out a "non-immigrant" visa application, which asks, "Have you ever been afflicted with a communicable disease of public health significance?" "Infection with the etiologic agent for acquired immune deficiency syndrome" is specifically listed in U.S. immigration law as a "communicable disease of public health significance." If an HIV-positive non-citizen knows that HIV/AIDS qualifies as such a disease and checks "no" on the visa application, the DHS may deny the application based on fraud if an agent has reason to suspect HIV/AIDS, such as medication found in luggage. The DHS may also turn away anyone who answers "yes" to this question, unless he or she qualifies for a discretionary waiver. To avoid these problems, non-immigrant visa applicants may request in advance a special waiver for visitors. HIV waivers are not easy to obtain and may result in processing delays or denial.


Waivers for Immigrants under INA §212(g)

Since December 1, 1987, all immigrant visa applicants 15 years or older have been required to submit to HIV testing. Applicants under 15 are also subject to testing if there is reason to suspect they may have HIV (such as hemophilia or an HIV-positive parent). But a waiver may be available to people with HIV who have certain family relationships. The individual must be the (opposite sex) spouse, parent or unmarried son or daughter of a U.S. citizen, permanent resident, or person issued an immigrant visa. There is one special exception to the "family member" requirement, and that exception applies to certain HIV-positive survivors of domestic violence.

Having the requisite family relationship or qualifying for the domestic violence exception is not enough on its own to obtain this waiver. Applicants must also meet a rigorous series of standards. One standard that must be overcome is the likelihood of the applicant becoming a "public charge." This ground is designed to prevent non-citizens from becoming dependent on the U.S. government for economic support if, for example, prolonged hospitalization or extensive medical care becomes necessary. Applicants must show they have the necessary means and capability to deal with a potential high-cost health situation.

Moreover, applicants with HIV must pass an "extra test," which does not appear anywhere in immigration law. They must also show: (1) that the danger to U.S. public health created by the applicant's admission is minimal; (2) that the possibility of the spread of HIV created by admission is minimal; and (3) that there will be no cost incurred by any level of U.S. government agency without the prior consent of that agency.

Once a 212(g) waiver is granted, it will remain in effect as long as it has not been revoked, no new grounds of inadmissibility have arisen, and the applicant is complying with the original conditions specified in the waiver. HIV waivers are not easy to obtain, however, and may result in processing delays or denial.


Waivers for Refugees and Asylum Seekers Under INA §209(c)

Regardless of HIV status, those that fear persecution in their home countries because of race, religion, nationality, political opinion, or social group are eligible to apply for asylum (if currently in the U.S.) or refugee status (if abroad). People seeking asylum do not need to apply for an HIV waiver, but those seeking "refugee status" abroad must obtain an HIV waiver. Non-citizens granted asylum, however, may later seek permanent residence and, at that time, must request a waiver.

No family relationship with a citizen or permanent resident is required for the refugee/asylum waiver. Instead, applicants must prove that they merit a discretionary waiver for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Refugees and asylum seekers are also exempt from the public charge ground of inadmissibility, but they are regularly subjected to the government's three-pronged "extra test" aimed at persons living with HIV. Encouragingly, in 1999, immigration authorities issued special guidance regarding HIV-positive refugees to make it easier for them to meet the "extra test."




  
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This article was provided by AIDS Community Research Initiative of America. It is a part of the publication ACRIA Update. Visit ACRIA's website to find out more about their activities, publications and services.
 
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