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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Compliance and consequences
- Extension of stay and/or change in status
The current policy does not address this issue at all. Its inclusion in the DHS proposal is one of the most disturbing elements of the new rule. Waiver seekers would be required, to forgo, in writing, the opportunity to apply for an extension of their stay, a change in nonimmigrant status, or an adjustment of status to that of permanent resident (DHS is also considering whether it would be sufficient to have consular office simply advise applicants, orally or in writing, that they are surrendering this opportunity). As written, this would mean:
- Travelers would not be permitted to extend their stays in the U.S. beyond 30 days, should the need arise.
- Should an applicant have the opportunity to apply for a work visa, they would have to return home to do so and would probably be denied.
- Applicants would not be allowed to apply for a green card within the United States if entering under this waiver.
While this provision may not foreclose on the ability of an individual who enters the U.S. under this new process to apply for asylum, a literal reading of this provision suggests that he or she would never be able to get a green card. Unable to attain legal permanent residency status, this person would remain in limbo indefinitely, barred from a host of services, benefits, and employment opportunities. There is another option: If an applicant elects to go through the waiver process that is currently in place instead of the "streamlined" process in the proposed DHS rule, the opportunity to extend his or her stay or to apply for a change of status would not have to be relinquished.
- Failure to comply
If a traveler does not comply with the conditions set out in the new rule, he or she would be permanently ineligible for admission under the proposed regulations. The stakes here are high for an HIV-positive individual. What happens if an individual becomes symptomatic during the course of his or stay in the U.S.? Or if he or she gets the flu or has an accident on Day 28 in the U.S. and cannot travel for two weeks? What if they need to change their drug regimen (see above)? Would this individual thereafter be barred from entering the U.S.?
Other considerations
- Accidental violations
Decisions by the consular officers are not binding on the Customs and Border Patrol (CBP) and vice versa. In other words, CBP could stamp a person's papers as valid for 60 days when the consular officer only authorized 30 (the maximum for the HIV waiver). Travelers may unintentionally violate the provisions of their visa if they are not careful.
- Proof of HIV status
The proposed rule adds the requirement that applicants establish that they are HIV-positive, though it does not indicate what would be accepted as proof.
- Waiver stamped on passport
The practice of branding people's passports with a marker of waiver will continue.
In addition to addressing the issues outlined above, we intend to include in our formal comments that the U.S. HIV entry bar is a violation of human rights as enumerated by the International Covenant on Civil and Political Rights, the UN Declaration of Human Rights, and the UN human rights guidelines on HIV/AIDS and that it has been acknowledged by the American Medical Association, the American Public Health Association, and two Secretaries of Health and Human Services as being unjustifiable on public health grounds.
Comments must be received by December 6, 2007. We are sending along a pdf of the proposed rule which includes information on how and where to submit them.
For more information, please contact:
Nancy Ordover, PhD nancyo@gmhc.org
Assistant Director for Research and Federal Affairs
Gay Men's Health Crisis, Public Policy Department
119 W. 24th Street, 9th floor
New York, NY 10011-1913
USA
Vishal Trivedi vishalt@gmhc.org
Immigration Project Manager
Gay Men's Health Crisis, Legal Services Department
119 W. 24th Street, 7th Floor
New York, NY 10011
USA
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