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On January 04, 2010, the HIV Travel Ban prohibiting HIV positive individuals from visiting, working or living in the United States finally ended.
HIV+ positive individuals will no longer be inadmissible to the US solely based on HIV status. The US is therefore no longer on the list of a dozen countries–Armenia, Brunei, Iraq, Libya, Moldova, Oman, Qatar, Russia, Saudi Arabia, South Korea, Sudan–that deny or restrict entry based on HIV status.
The US HIV Travel Ban was in place in some form since 1987. In 1993, Congress amended INA § 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 Lawful Permanent Resident. With Congress’s 1993 legislative action, HHS and CDC no longer had control over HIV’s appearance on the list of communicable diseases of public health significance.
In 2008, Congress removed the 1993 INA language that made HIV+ individuals ineligible to travel, work or live in the US. This put put the issue back into the discretion of HHS and CDC. However, the Bush Administration took no action to actually lift the HIV Travel Ban. This required HHS to review and change its assessment of HIV as a communicable disease of public health significance. If HHS made the change, a lengthy rule-making procedure was required to remove HIV from the list. There was much talk in the media that President Bush had lifted the HIV Travel Ban. But not much information existed on the considerable final steps necessary to make this happen. Therefore, a great deal of confusion about whether HIV+ people could freely travel, work or live in the US.
In 2009, after overcoming many bureaucratic hurdles, HHS / CDC determined that HIV should be removed from the list of communicable diseases of public health significance. In November 2009, they published a Final Rule to lift the HIV Travel Ban. This Rule became effective on January 4, 2010 after completion of a lengthy rule-making process.
After January 04, 2010, HIV+ individuals could freely enter the US in visitor or temporary worker status, as may those seeking Lawful Permanent Residence. However, HIV+ individuals seeking a Green Card may face inadmissibility issues based on public charge grounds. Although the medical examination no longer requires an HIV test, the physician may ask questions about overall health that could suggest that an applicant is HIV+. US immigration and consular officers may also take health into consideration when determining public charge issues. If they make a public charge determination, the applicant could be inadmissible to the US. In that case, they would need to a waiver of the public charge finding.
The US’s HIV Travel Ban prohibited entry to any HIV+ positive individual unless they person qualified for and could successfully navigate a burdensome, discretionary and therefore unpredictable HIV waiver process.
To obtain a temporary visa, HIV+ individuals had to engage in a § 212(d)(3) waiver process. This required a showing that they were asymptomatic; coming for a short visit; they had insurance or assets to pay for medical care; and they posed no danger to public health. The government decided waivers on a case-by-case basis. They were discretionary, and they often required a medical examination. In addition, they were valid only for a year. Given this complexity and short validity period, only those with resources to do so could obtain such waivers. This effectively banned all other HIV+ people from the US.
Things were even worse for those seeking Lawful Permanent Residence (Green Card). The waiver required such applicants to have an immediate relative who was a US citizen or US Lawful Permanent Resident. They also had to demonstrate three things. First, if admitted, there would be minimal danger to the US public health. Second, they had to show the possibility of spread of infection was minimal. Third, they had to demonstrate that no US government agency would incur any cost without its prior consent. The procedure required additional information as well. This included documentation of appropriate medical treatment; education regarding the disease and modes of transmission; and recommended treatment and prognosis. The threshold requirement alone, i.e., having an immediate relative, effectively excluded a large majority of HIV+ people from obtaining lawful permanent residence.