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DHS Issues Proposed Regulations Which Further Restrict Travel for HIV-Positive Foreign Nationals
Proposal contradicts directive to ease regulations
Thursday, November 15, 2007, New York, NY — The Department of Homeland Security (DHS) issued proposed regulations which purport to offer a "streamlined," "categorical" waiver for HIV-positive visitors from other countries. Under current immigration law, any foreign national who tests positive for HIV is "inadmissible," meaning he is barred from permanent residence and even short term travel in the United States. There are waivers available to this rule, but obtaining them has always been difficult.
On World AIDS Day last year, President Bush announced his intention to create a streamlined process for foreign travelers with HIV to enter the United States more easily. Currently the United States is one of only 13 countries in the world, including Iraq, Saudi Arabia, and Sudan, which ban travel for individuals who are HIV-positive. Now, almost a year later, DHS has proposed regulations which would make it even harder to get a short-term waiver.
"Unfortunately, despite using the terms 'streamlined' and 'categorical,' in reality these regulations are neither," said Victoria Neilson, Legal Director of Immigration Equality. Under the new rules, a visitor would need to travel with all the medication he would need during his stay in the U.S., prove that he has medical insurance that is accepted in the U.S. and would cover any medical contingency, and prove that he won't engage in behavior that might put the American public at risk. The maximum term of the waiver would be 30 days.
"More than two decades into this epidemic, the United States continues to stigmatize people with HIV and treat this illness unlike any other virus," Neilson continued. "Creating insurmountable hurdles to travel does nothing to protect the American public from HIV."
The new regulations purport to speed up the waiver application process because consular officers would be empowered to make decisions on waiver applications without seeking DHS sign off. However, by using this "streamlined" application process, waiver applicants would have to agree to give up the ability to apply for any change in status while in the U.S., including applying for legal permanent residence.
"As written, the rule could leave individuals with HIV who obtain asylum in the U.S. in a permanent limbo; forever barred from obtaining legal permanent residence, and therefore cut-off from services, benefits, and employment opportunities," said Nancy Ordover, Assistant Director of Research and Federal Affairs for Gay Men's Health Crisis. "It seems very disingenuous that the government is claiming to make things easier for people with HIV, but it's really compelling them to forfeit their rights."
There is a 30 day comment period ending December 6, 2007 before DHS will issue a final rule.
Immigration Equality is a national organization that works to end discrimination in U.S. immigration law, to reduce the negative impact of that law on the lives of lesbian, gay, bisexual, transgender and HIV-positive people, and to help obtain asylum for those persecuted in their home country based on their sexual orientation, transgender identity or HIV-status.
Gay Men's Health Crisis (GMHC) is a not-for-profit, volunteer-supported and community-based organization committed to national leadership in the fight against AIDS. Our mission is to reduce the spread of HIV disease, help people with HIV maintain and improve their health and independence, and keep the prevention, treatment and cure of HIV an national and local priority. In fulfilling this mission, we will remain true to our heritage by fighting homophobia and affirming the individual dignity of all gay men and lesbians. We provide services and programs to over 15,000 men, women and families that are living with or affected by HIV/AIDS in New York City.
© 2007 Gay Men's Health Crisis
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