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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On December 1, 2006 (World AIDS Day) the White House announced that the President would "direct the Secretary of State to request and the Secretary of Homeland Security to initiate a rulemaking that would propose a categorical waiver for HIV-positive people seeking to enter the United States on short-term visas."
While it was clear from the outset that the proposed rule would, would not rescind the entry ban on travelers with HIV or remove HIV as grounds for inadmissibility to the United States, almost 11 months passed before details of the Department of Homeland Security (DHS) proposal were released.
In addition to upholding and explicating existing provisions of the current regulation, the DHS proposal introduces some new and troubling criteria. Gay Men's Health Crisis and the Coalition to Lift the Bar will be submitting comments prior to the December 6th deadline (details on how to do this follow this document). In an effort to help our colleagues in other organizations formulate their own responses to the proposal, we offer this breakdown on what this new rule would change, what would remain the same, with particular emphasis on new and ongoing areas of concern.
The basics
The proposed rule does not change Section 212(a)(1)(A)(i) — (HIV Inadmissibility Clause) of the Immigration and Nationality Act which has, for 20 years, barred HIV+ immigrants already in the U.S. from attaining any recognized legal status except in extremely limited circumstances; barred HIV+ people from coming to the U.S. to immigrate; and barred HIV+ people who are not U.S. citizens or legal permanent residents from traveling to or transiting through the U.S.
Under the proposed rule, immigrants with HIV would still be rendered inadmissible and subject to the 212(g) waiver requirements (need for a family member, private health insurance, etc.).
As is true with the current policy, under the new rule HIV-positive travelers seeking a waiver would be limited to admission on a B-1 (entering for a short business related reason) or B-2 visa (visitors for pleasure) for visits of 30 days or less. However, under the new rule, they would be able to apply for a waiver to allow them admission into the United States without prior approval by the Secretary of Homeland Security. In other words, the determination on their application could be made at the consular officer level in their home countries rather than by the Department of Homeland Security. The "visa stamp" would be valid for 12 months or less; and the traveler would be allowed into the U.S. for 2 "visits" not to exceed 30 days. Waiver applicants would still be allowed to apply under the current system (i.e., through DHS) even if the new rule is adopted.
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