In the next few days, we expect the Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC) to publish in the Federal Register a new proposed rule to eliminate the HIV Travel Ban, which currently places heavy restrictions on HIV positive persons who wish to enter and/or reside permanently in the United States. Once the HIV Travel Ban is lifted, HIV positive individuals, who are still generally unable to travel, work or live in the United States, will no longer be inadmissible to the US.
The proposed rule will likely seek to remove HIV from the list of communicable diseases of public health significance that make applicants for United States visas or entry into the United States inadmissible without first seeking and being granted an HIV waiver. This will be one of the final steps in a multi-step legislative and bureaucratic process required to remove the HIV Travel Ban.
Following publication of the proposed rule will be a required 45 day public comment period. After that time, the Office of Management and Budget (OMB) and the Centers for Disease Control and Prevention (CDC) will review all commentary on the proposed rule and draft a final rule for publication in the Federal Register, with an effective date for the final rule to occur 30 to 60 days from its publication.
Currently, HIV positive individuals are inadmissible to the United States and must seek a waiver to enter either temporarily or permanently. The HIV Travel Ban has been in place in one way or another since 1987. It became part of the Immigration and Nationality Act (INA) in 1993, when Congress specifically mandated that persons with HIV infection cannot enter the United States for travel, work or to live. This amendment to the law removed decisions regarding HIV and travel to the United States from the discretionary authority of experts at the Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC). However, in 2008, Congress amended the INA so that HIV infection no longer automatically makes a non-US national inadmissible to enter the United States. This amended handed back the authority regarding HIV infection and admissibility back to the discretion of the HHS / CDC.
Persons with HIV who wish to travel to the US may seek a waiver, but HIV waivers for more than a very short period of time are now extremely limited, and HIV waivers for persons seeking permanent residence require at the very least that the applicant have a US citizen or legal permanent resident who is an immediate relative, effectively excluding many who are HIV positive. The HIV waiver process is also extremely burdensome and intrusive for applicants seeking to enter the United States for even a few days, and even more so for those seeking permanent residence.
We will post further information on removal of the HIV Travel Ban as such information becomes available, including any changes in the proposed policy as well as timing of the HIV Travel Ban’s removal.