Proposed Rule on Issuance of a Visa and Authorization
for Temporary Admission into the United States for
non-immigrants (temporary travelers into the
United States) with HIV
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The limits of "categorical"
The 2006 White House announcement used the term "categorical waiver." Similarly, the DHS proposal speaks of "categorical authorization." This has led to some confusion. "Categorical" here does not mean "absolute" nor is the waiver under discussion even available to all individuals within the given category of HIV-positive prospective travelers to the U.S. The application process would remain an individual one, with each applicant required to provide assorted evidence related to their HIV status; their assets, and their knowledge of transmission. All that is "categorical" here is the authorization DHS is giving to consular officers in an HIV-positive person's country of origin to determine whether or not he or she may be admissible to the U.S. without having to send the paperwork to DHS for approval.
Criteria for entry
To quote from the DHS notice: "DHS is proposing this categorical authorization to allow application for admission to the United States under B-1 (business visitor) or B-2 (visitor for pleasure) status for a period not to exceed thirty days if the applicant establishes specific facts and meets certain conditions." As noted above, this is nothing new. The type of visa, the maximum length of stay, and the requirement that the applicant ensures a minimized risk to public health and that no cost will be imposed on local, state, or federal government without prior consent is true under the current system. Nevertheless, there are several red flags arise when we get to the details of the new rule:
- Controlled state of HIV
In the past, waiver applicants had to demonstrate that they were asymptomatic. Under the new rule, they would have to "show a controlled state of HIV such that there is no anticipated need for additional medical care" while in the U.S. The proposed rule defines a "controlled state" as existing when there are no symptoms of "an active, AIDS-related condition that is contagious or that requires urgent treatment." What is not specified is how the absence of symptoms will be demonstrated? Will a provider's letter suffice? What about travelers coming from medically underserved areas who may not be able to secure recent medical documentation?
- Evidence
Applicants must also provide the consular officer with evidence that (a) the danger to the public health is minimal; (b) the possibility of transmission of HIV is minimal; (c) no cost will accrue to any government agency without prior consent. Again, the question arises, what will count as evidence? It is a near certainty that applicants from under-resourced countries, as well as low-income applicants from all countries, will face the greatest difficulties in supplying the requisite proof.
- Drug supply
Under the proposed rule, applicants would have to establish that they have an adequate supply of antiretrovirals (ARVs) to last for the duration of their trip to the U.S. This new provision demonstrates a profound lack of understanding of HIV and AIDS, as there is always a chance that an individual's treatment regimen may need to be adjusted. Furthermore, many asymptomatic HIV+ people are not on medication. Who is going to check if a traveler has an "adequate supply" of their meds? Customs and Border Patrol at the port of entry? The consular officer? Neither have expertise in HIV treatment. What happens if the luggage with the ARVs is lost? Does that put the traveler out of compliance?
- Expertise and authority
Consular officers currently evaluate much of the criteria listed above, but the question remains: Are they truly equipped to make determinations regarding medical etiology, medication, transmission, public health, etc.? There is no provision in the DHS proposal for any type of training for consular officers. What's more, as is currently the case, there is no mechanism to appeal a consular officer's determination.
- Knowledge of HIV
Applicants must show that they have been counseled on and are aware of the communicability and routes of transmission of HIV. This is the case currently, but again the proposed rule offers no clarity on what counts as evidence of this understanding. What is new is the inclusion that applicants demonstrate that they know they cannot donate blood or blood components.
- Assets
Applicants would also have to prove they have sufficient assets (such as insurance) to cover any medical care they may need while in the U.S. This is the case now and poses a barrier to low-income travelers, those with insurance that is not recognized by U.S. facilities, and those who are entirely without insurance owing to the medical care delivery system in their home countries.
- Visa Waiver Program
This allows travelers from certain countries* (primarily European) to enter the U.S. without a visa provided they are not "inadmissible." HIV-positive travelers from these countries are considered "inadmissible" and have always been required to get a visa. The new rule upholds and makes explicit their inadmissibility under the Visa Waiver Program.
Because HIV-negative travelers from these countries do not need a visa, they are not required to prove that they have sufficient assets to cover medical care should the need arise while they are in the U.S. While HIV-negative travelers from countries where visas are required to travel to the U.S. may or may not be asked if they have such assets at the discretion of the consular officer during the interview process, no such attestation is demanded on the application form itself. In contrast, the proposed rule implies that HIV-positive travelers would be out of compliance if, due to unforeseen circumstances, they required medical care, including emergency room care that exceeded their assets.
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