by David W. WebberEssays
Summary of U.S. Law on Entry of Noncitizens with HIV
The United States denies entry to noncitizens (both immigrants and non-immigrant visitors) with HIV. This law, which has been widely criticized by public health authorities (among others), is virtually unique among HIV travel policies world-wide, putting the United States in the company of countries such as Armenia, China, and Saudi Arabia.
Initially, the policy was adopted by the former U.S. Immigration and Naturalization Service, now U.S. Citizenship and Immigration Services within the Department of Homeland Security. Subsequently, however, the U.S. Congress put this exclusion into the Immigration and Nationality Act itself, Section 212(a)(1)(A)(i) [8 U.S.C. § 1182(a)(1)(A)(i)]:
Any alien . . . who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome” is ineligible to receive a visa and ineligible to be admitted to the United States.
Reform of the law in this area will require another act of Congress to repeal the ban. For more information about this issue, see § 11.10 of AIDS and the Law.
The prohibition against entry to the United States by those with HIV applies to both immigrants and non-immigrant visitors. Immigrants with HIV face significant problems in remaining permanently in the United States. For some immigrants, however, a “waiver” of the exclusionary policy may be available. Immigrants with HIV should consult an attorney familiar with immigration standards in this area.
United States citizens with HIV, however, can freely travel from and return to the United States, although they should check on the policies of the countries they plan to visit. For more information about international travel for U.S. citizens with HIV, check the travel information available on the AEGIS Website.
HIV-infected non-citizens with a legal U.S. immigration status may travel outside the United States, but should first determine whether they will be subject to the HIV exclusion upon their return and whether a waiver of the exclusion is available.
Non-immigrants coming to the United States (for example, tourists, students, or other temporary visitors) are also subject to the HIV ban. In obtaining a non-immigrant visa, applicants are not required to be tested for HIV or undergo a medical exam. Nor are they directly asked whether they are HIV infected. The visa application form, however, does ask whether the individual has a “communicable disease of public health significance.” For non-immigrants from visa waiver program countries, the same question is asked on the I94-W form. If the applicant is not aware that HIV is such a disease under U.S. immigration law, he or she could respond “no.” In that case, the application would not be fraudulent. But if the applicant answers “no,” while knowing that individuals with HIV are barred from entry, then the applicant has committed immigration fraud, which, if discovered, is an permanent, non-waivable, basis for inadmissibility. If the applicant answers “yes,” they will be denied the visa, unless they are successful in obtaining a waiver. Waivers can be obtained for 30-day visits to the United States to (1) visit family; (2) receive pre-paid medical treatment; (3) conduct business; or (4) attend a scientific or health-related conference. Waivers for longer visits can also be obtained if other requirements are met. For a brief summary of the waiver policy, read the U.S. Customs and Immigration Service’s factsheet.
In 1990, U.S. Immigration and Naturalization Service issued an “advisory” policy regarding border inspections regarding HIV/AIDS. In the event that this policy is violated by immigration officials, however, there is no remedy or recourse available for the traveler. Under this policy, immigration and customs enforcement officials should not inquire about HIV status unless there are physical symptoms of illness or the individual makes an unambiguous and unsolicited statement of his or her status. Carrying literature pertaining to HIV/AIDS or related materials should not cause questioning regarding HIV status. However, discovery of medications used to treat HIV illness may result in questioning and a referral for a medical examination. As a result, some travelers carry their HIV-related medication in unmarked or nonprescription containers and bring a separate written prescription pertaining to the medication in order to comply with U.S. customs laws.
In the event that an individual with HIV is identified at the border, immigration officials generally attempt to persuade the individual to return to his or her country of origin. In many cases, they will release the individual, either with or without posting any bond. The individual is then required to appear within a few days for a “deferred inspection.” The individual can present evidence and have legal counsel present. Immigration officials will then determine whether the individual will be legally admitted to the United States. If an individual with HIV is identified at the border, however, immigration officials have the authority to detain the individual indefinitely, without any right to release on bail. The individual has no right to counsel and may not be permitted to communicate with others who may be able to help the individual.
