Senate Bill Seeks to Lift Ban on HIV-Positive Visitors

January 11, 2008—A bill introduced in the Senate in December 2007 proposes an amendment to the Immigration and Nationality Act (INA) to allow admission into the U.S. by HIV-positive foreign visitors. Currently, all HIV-positive individuals must apply for a special waiver if they wish to travel to the U.S.

The U.S. is one of only 13 countries with laws restricting entry by people with HIV. The other countries are Armenia, Brunei, China, Iraq, Libya, Moldova, Oman, Qatar, the Russian Federation, Saudi Arabia, South Korea, and Sudan. China recently announced plans to reform its immigration law.

According to current U.S. policy, travelers and immigrants may be denied admission if they are found to have a “communicable disease of public health significance.” Ordinarily, the secretary of health and human services is authorized to determine the composition of this list of diseases, which includes HIV, tuberculosis, and syphilis, among others. In 1991, the secretary recommended removing HIV from the list, but that proposal was dropped due to opposition from Congress. In the 1993 INA, Congress specified that HIV infection was grounds for inadmissibility, thereby revoking the secretary’s ability to make a public health determination about this disease.

Under current U.S. procedures, individual HIV waivers are granted at the discretion of the secretary of homeland security. The secretary also has the authority to grant a blanket waiver allowing HIV-positive individuals to attend particular events, such as the United Nations General Assembly Special Session on HIV/AIDS, without being questioned about their status.

In December 2007, the U.S. Department of Homeland Security proposed a new regulation intended to streamline the waiver application process by allowing the determination of admissibility to be made at the consular level in the applicant’s country of origin, rather than by the secretary of homeland security. While a streamlined process for HIV-positive travelers would be welcome, the proposed rule contains new criteria, some of which appear to be more restrictive than current immigration procedures. The proposed regulation, which has not yet been enacted, applies only to non-immigrant visa applicants and does not amend the INA.

In addition to striking language in the INA that refers specifically to HIV as grounds for inadmissibility, the recently introduced bill would also require a review of the ongoing classification of HIV as a communicable disease of public health significance within the INA.

The bill, the HIV Nondiscrimination in Travel and Immigration Act of 2007 (S. 2486), was introduced by Senators John Kerry (D-MA), Gordon Smith (R-OR), and Richard Durbin (D-IL). This bill is a Senate version of the House bill (H.R. 3337) introduced earlier this year by Representative Barbara Lee (D-CA) and several co-sponsors.