An end to the HIV bar?

On September 15th USCIS headquarters released a memorandum on the controversial issue of HIV and immigration. Under the guidance set forth in the memorandum, USCIS adjudicators are to hold in abeyance any application for a waiver or benefit, including adjustment of status, filed by an HIV-positive applicant. This marks a far-reaching change, as for more than 20 years the policy has been to deny immigration benefits to HIV-positive immigrants, save the small number who met the criteria for a waiver.

The full memorandum is available here:

http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/2009%20Memos%20By%20Month/September/HIV_HHS%20Rule.pdf

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act bars the admission of any alien "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance." This bar extends to both non-immigrant visas, such as visitor visas or extraordinary ability visas, and applications for lawful permanent residence.

HIV was first added to the Health and Human Services (HHS) list of communicable diseases in 1987. As many readers will remember, the disease at that time was devastating many communities and was still shrouded in fear and mystery. At the time HIV was placed on the HHS list, the agency retained the authority to remove it at its discretion as science and medicine advanced our understanding of the disease. But a 1993 by a bill by Senator Jesse Helms stripped both HHS and the president of that discretion.

For all intents and purposes, the 1993 change to the law rendered HIV a permanent and insurmountable obstacle to legal immigration for most HIV-positive people. Waivers existed, but for most these existed only in the theoretical realm. For example, for an HIV-positive artist seeking adjustment of status based on extraordinary ability, hardship to a U.S. citizen or green card holding spouse, parent or child is required to even apply for a waiver. The non-immigrant seeking to merely visit Disneyland must submit to the whim of a consular officer who is subject to virtually no oversight in deciding whether or not to waive the HIV bar and allow the visit.

In July 2008 G.W. Bush reauthorized the U.S. President's Emergency Emergency Plan for AIDS Relief (PEPFAR). Included with the bill was an amendment that restored HHS with decision-making authority to designate HIV as a communicable disease of public health significance. This signified a major change to the law and laid the ground for the elimination of the bar altogether.

PEPFAR eliminated the statutory requirement that HHS must designate HIV as a statutory bar to admission. However, HHS did not simultaneously exercise its restored authority and remove HIV from its list. The bar will remain until it does, but on July 2, 2009 HHS published a proposed amendment to the federal regulations that would remove HIV from its list of communicable diseases of public health significance. The Obama administration has expressed its support for the amendment and it is likely that the amendment will become a final rule in early 2010. With that, the longtime bar will come to an end.

For HIV-positive immigrants and their loved ones, this is cause for guarded optimism. The USCIS policy memorandum suggests that the change is a fait accompli. But at the same time the agency makes it clear that in the interim it will not approve cases without a waiver. Further, there are still political obstacles to the final implementation of the rule.

For those affected by this issue, it is important to understand that as of this writing the HIV bar remains in place. Until it is formally eliminated, HIV-positive individuals seeking to visit or immigrate to the U.S. will still face the bar. Careful planning is essential. We will endeavor to keep our readers updated.