The questions and answers below contain a summary of the US Department of State Q and A on the removal of the HIV Travel Ban, i.e., the change in law made by the Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC) removing HIV infection from the list of communicable diseases of public health significance. The lifting of the HIV Travel Ban means that HIV+ individuals will no longer be inadmissible for admission to the United States solely based on their HIV status.
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act bars any foreign national who has been diagnosed with certain specific illnesses from admission to the US. Persons infected with HIV/AIDS have been barred from entry to the US in one form or another since 1987. This has come to be known as the HIV Travel Ban.
In 1993, Congress passed a law specifically prohibiting HIV+ individuals from traveling to the United States, including those seeking to work or live in the US legally. Prior to that time matters regarding communicable diseases of public health significance had been left to the discretion of experts at the US Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC). However, the 1993 amendment in the law mandated inadmissibility to the US for persons with HIV. As mentioned above, the restriction placed upon HIV+ individuals to enter the US has become known as the HIV Travel Ban.
In 2008, Congress once again amended the Immigration and Nationality Act (INA), removing the specific bar on persons infected with HIV from entering the US and putting decisions regarding the admissibility to the US of persons with certain communicable diseases back into the discretion of the HHS / CDC. However, despite much media to the contrary crediting the Bush Administration with lifting the HIV Travel Ban, this still left considerable unfinished bureaucratic business that was never completed by the Bush Administration. Specifically, HHS and CDC still had to pass a law to remove HIV from its list of communicable diseases of public health significance, and this required a complicated and lengthy official rulemaking before the HIV Travel Ban could actually be removed.
On July 2, 2009, HHS published a Notice of Proposed Rulemaking that indicated its intent to remove HIV from the list of communicable diseases that kept certain foreign nationals from traveling to and living in the US.
On November 2, 2009, following required administrative law procedures, HHS published a Final Rule in the Federal Register removing Human Immunodeficiency Virus (HIV) infection from the list of diseases that make a foreign national inadmissible to the US. This rule takes effect January 4, 2010. As of that date, HIV infection will no longer make a foreign national who is HIV+ inadmissible to the US, and the HIV Travel Ban will have been removed.
For more information about HIV infection generally, please visit the CDC Web site.
Q. I am HIV positive and I have an application pending with USCIS. How will the rule that removes HIV as a ground of inadmissibility affect my application?
A. Until the final rule goes into effect January 4, 2010, an approved waiver is still required to grant an immigration benefit for HIV positive applicants. USCIS issued a policy memorandum dated November 24, 2009, instructing officers to continue to hold in abeyance any immigration benefit application, which would be denied under current law solely based on HIV infection. However, if the benefit application is pending, and the applicant has already filed a waiver application which is approvable, the memorandum instructs USCIS officers to grant the waiver so that the case can be adjudicated.
On or after January 4, 2010, when HIV is no longer a medical ground of inadmissibility, all cases that were held in abeyance because of HIV infection will be adjudicated according to the new law. Furthermore, HIV infection will no longer be a medical ground of inadmissibility for any application for US immigration benefits pending on or after January 4, 2010.
Q. I am scheduled for a medical examination before January 4, 2010. Will I be tested for HIV?
A. Since civil surgeons and panel physicians must follow CDC’s regulations and Technical Instructions for the Medical Examination of Aliens in effect at the time of examination, they must include HIV testing as part of any medical examination conducted on or before January 3, 2010. A civil surgeon must also include the results of this HIV testing on any Form I-693 signed on or before January 3, 2010. Beginning January 4, 2010, the civil surgeon, or panel physician should no longer test an individual for HIV during a foreign national’s medical examination.
Q. I am scheduled for a medical examination prior to January 4, 2010 and the HIV screening showed that I am HIV positive. What will happen to my adjustment application if it is adjudicated on or after January 4, 2010?
A. USCIS has advised officers to disregard any diagnosis of HIV infection when determining admissibility on or after January 4, 2010. This means that for any final adjudication made on or after January 4, 2010, you will not be found inadmissible for medical reasons just because your record shows that you have HIV infection. Infection with HIV is no longer considered a reason for medical inadmissibility to the US.
Q. I am HIV positive and I am not eligible for a waiver. Does this change mean I can enter the US or be granted adjustment of status without a waiver?
A. Beginning January 4, 2010, HIV+ individuals will no longer be required to file a waiver of inadmissibility based solely on HIV status. If your case is pending on or after January 4, 2010, an HIV waiver is not required, even if your medical examination showed that you are HIV+. Civil surgeons will not test for HIV after January 4, 2010.
Q. I filed a waiver application because I am HIV+. If USCIS has not adjudicated my case by January 4, 2010, will I receive a refund of my fee for my waiver application?
A. No. Since you were inadmissible at the time you filed the HIV waiver application, your HIV waiver was correctly filed. On January 4, 2010, USCIS will administratively close any pending HIV waiver application, because that individual is no longer inadmissible to the US.
Q. HIV screening is still shown on the I-693, Report of Medical Examination and Vaccination Record. Have civil surgeons been notified that this is no longer required as of January 4, 2010?
A. USCIS notified civil surgeons through local points of contact, an update on the USCIS Web site, and through updates on the CDC Web site.
Q. How are panel physicians who conduct medical examination of foreign nationals planning to enter the US notified of this change?
A. The US Department of State (DOS) regulates panel physicians. For more information about notification of panel physicians, please contact DOS. Contact information is on the DOS Web site. CDC also provides information to panel physicians on the CDC Web site.
Q. My application was denied prior to September 15, 2009, due to failure to file an HIV waiver. Can I file a motion to reopen or reconsider because an HIV waiver is no longer needed?
A. In general, a motion to reopen or reconsider must be filed within 30 days of the final adjudication. However, if your application was denied solely based on your HIV status, on or after July 2, 2009, the date of the proposed HHS rule, USCIS will waive the 30 day deadline. USCIS will accept the filing of your motion to reopen or reconsider along with the filing fee.
Q. My application for adjustment of status was denied prior to July 2, 2009, based solely on my HIV status. What should I do?
A. You may reapply for adjustment of status, if eligible, once the new rule takes effect on January 4, 2010. USCIS will make a new decision in light of the final HHS rule.
Q. My HIV+ spouse is processing an immigrant visa through a US consulate overseas. How will the rule change affect my spouse’s immigrant visa application abroad?
A. As of January 4, 2010, HIV testing is not required as part of the US immigration medical screening process. For more information on consular processing, visit the DOS Web site.
Q. Where can I find more information about the HHS rule regarding HIV, and the Technical Instructions for the Medical Examination of Aliens?
A. For more information about the new rule, or to view the rule in its entirety, see the CDC page on the HIV Final Rule.
Click here for the Technical Instructions for the Medical Examination of Aliens for the panel physicians abroad or civil surgeons in the US.
Q. Where can I find information about the US civil surgeon program, the completion of Form I-693, or adjustment of status?
A. If you have any questions about the civil surgeon program, the completion of Form I-693, or the adjustment of status application, please visit the USCIS Web site, or call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833).