On January 04, 2010, the HIV Travel Ban prohibiting HIV positive individuals from visiting, working or living in the United States finally ended.
This means that HIV positive individuals will no longer be inadmissible to the United States solely based on their HIV status. The US is no longer on the list of a dozen countries–Armenia, Brunei, Iraq, Libya, Moldova, Oman, Qatar, the Russian Federation, Saudi Arabia, South Korea, Sudan, and until now, the United States–that deny entry or have entry restrictions for HIV positive individuals.
The US HIV Travel Ban had been in place in one form or another since 1987. However, in 1993, Congress amended INA section 212(a)(1) to specify that “infection with the etiologic agent for acquired immune deficiency syndrome” creates ineligibility for admission to the US as a visitor or as a Legal Permanent Resident (Green Card holder). With Congress’s 1993 legislative action, HHS and CDC no longer had control over whether HIV would appear on the list of communicable diseases of public health significance.
In 2008, Congress removed the 1993 INA language that had made those with HIV infection ineligible to travel, work or live in the US, putting this issue back into the discretion of HHS / CDC. However, before President Bush left office, the Bush Administration took no action to actually lift the HIV Travel Ban. Lifting the ban required HHS to review and change its assessment of HIV as a communicable disease of public health significance, and to engage in a lengthy rulemaking procedure if did determine that HIV should be removed from the list. There was much talk in the media that President Bush had lifted the HIV Travel Ban, but not much information on the considerable final steps necessary to make this happen, and therefore a great deal of confusion about whether HIV positive people could finally freely travel, work or live in the US.
Finally, in 2009, after overcoming many bureaucratic hurdles, including the appointment and confirmation of the Secretary of Health and Human Services (HHS) in the new Obama Administration, HHS / CDC did finally determine that HIV should be removed from the list of communicable diseases of public health significance, and in November 2009, published a Final Rule to effectively lift the HIV Travel Ban. This Rule became effective on January 4, 2010 after completion of a lengthy rulemaking process.
After January 04, 2010, HIV positive individuals may freely enter the US in visitor or temporary worker status, as may those seeking Legal Permanent Resident (Green Card) status in the US. However, for those seeking a Green Card, HIV+ persons may face inadmissibility issues based on the likelihood of becoming a public charge. Although the medical examination required prior to obtaining the Green Card no longer requires an HIV antibody test, the physician may ask questions about overall health that could lead him/her to conclude that an applicant is HIV positive. Moreover, US immigration and consular officers may take health into consideration when determining public charge issues, and if a public charge determination is made, then that applicant could be inadmissible to the US and would need to seek a waiver of the public charge finding.
The US’s HIV Travel Ban prohibited entry to any HIV positive person unless that person qualified for and could successfully navigate an extremely burdensome and entirely discretionary (and therefore unpredictable) HIV waiver process.
To obtain a temporary visa, HIV positive individuals had to engage in a complicated and time-consuming waiver process under INA Section 212(d)(3)–a 212(d)(3) Waiver–requiring a showing that they were asymptomatic, coming for a short visit, that they had insurance or assets to pay for any necessary medical care and that they posed no danger to public health. The Section 212(d)(3) waiver was decided on a case-by-case basis, was entirely discretionary, often required a medical examination, and was valid only for a year. Given the complexity of preparing such a waiver and the fact that it had to be renewed year after year–with no guarantees of success from year to year–only those with the resources to do so were able to obtain such waivers, effectively banning all other HIV positive from the US.
Things were even worse for those seeking to become a Legal Permanent Resident (Green Card). To qualify for an HIV Waiver in this situation, applicants were required to have an immediate relative (spouse, parent, minor child or unmarried son or daughter) who was a US citizen or US Legal Permanent Resident (Green Card holder). They also had to demonstrate that, if admitted, there would be: minimal danger to the US public health; the possibility of spread of infection is minimal; and no US government agency would incur any cost without its prior consent. Other information was required as well, including documentation of receipt of appropriate medical treatment, education regarding the disease and modes of transmission, and recommended treatment and prognosis. The threshhold requirement for the HIV Waiver, i.e., having a spouse, parent or child relative, effectively excluded a large majority of HIV+ gay people from obtaining legal permanent residence (Green Card).