Move to �streamline� exceptions to the
total ban could limit rights, advocates say

by Eric Resnick

Washington, D.C.--New rules for people with HIV and AIDS to enter the U.S. have been criticized as being worse than the system that preceded them.

People with the virus have been banned from entering the U.S. since 1987, but waivers are sometimes given for short visits. President George W. Bush promised to �streamline� the process for getting these exceptions during World AIDS Day last year.

So Homeland Security, which had handled the waivers on a case-by-case basis, has now drawn up rules which can be followed by consulates.

But advocates of people with HIV say the new rules are no better than the current practice, and in some ways make visiting the U.S. more difficult. The administration is also coming under fire for putting the new rules through without the usual time for public comment and consideration.

The ban remains in place. The new rules are only for exceptions.

�I can�t understand how you can justify an HIV ban on travel in the U.S.,� said Victoria Neilson, legal director of Immigration Equality, one of the groups leading opposition to the new rules.

�It�s unfair for travelers and does nothing to protect Americans� health,� Neilson said.

Only a dozen other countries bar visitors with HIV or AIDS. They are Armenia, Brunei, China, Iraq, Libya, Moldova, Oman, Qatar, Russia, Saudi Arabia, South Korea and Sudan.

�These are typically not seen as countries with whom we share values on human rights,� Neilson said. �These regulations come from stigma and ignorance.�

The ban on all travelers �who are afflicted with any dangerous contagious disease� dates back to the Immigration and Nationality Act of 1952.

Congress added HIV to the list of inadmissible diseases in 1987. A 1990 amendment attempted to remove all sexually transmitted diseases but this was halted after negative public comment.

The matter was settled in 1993 with the National Institutes of Health Revitalization Act, which said, �infection with the etiologic agent for acquired immune deficiency syndrome� is a communicable disease of public health significance.

This made it explicit in the immigration act that aliens with HIV cannot enter the United States, even to change planes while traveling elsewhere. To lift this ban, Congress must change the 1952 law. But executive branch agencies can grant waivers.

The Department of Homeland Security now handles immigration, naturalization, customs and border control. Its secretary can waive the HIV ban for short visits, provided the traveler can pay for any medical treatment needed and prove they will not spread the disease.

People with HIV and AIDS have been permitted to enter the U.S. for events such as the Winter Olympics in Salt Lake City, the United Nations General Assembly Special Session on HIV and AIDS, various Metropolitan Community Church events, and the 2006 Gay Games in Chicago, according to the Federal Register.

However, waivers have been very difficult to get, and are issued capriciously.

Under the old rules the possibility of transmission and the danger to public health had to be minimal and no local, state or federal government agency could incur costs from the visit.

The new system makes it more difficult to enter the U.S. by requiring more documents. The old plan had few needed papers, but under the new one, visitors must document very private information about their health to bureaucrats.

An example is a requirement that the traveler carry medication they might need for the entire stay. Someone who doesn�t take any medication would have to get a doctor to prove to Homeland Security that it isn�t needed.

Waivers also require that the visit be 30 days or shorter, that the applicant proved that they were aware of their condition and they were under medical care and counseling.

Applicants also have to prove that they have health insurance that is accepted in the U.S.

Neilson says these requirements are unjust and stigmatizing.

�Someone could get hit by a bus or have a stroke while they are here,� Neilson said. �There�s no way to ensure a clean bill of health for travelers.�

Homeland Security says the years of waivers have given them experience in deciding when to allow HIV infected visitors into the U.S., and they want to use the use that experience to follow Bush�s World AIDS Day directive to �streamline� the process.

The new rules call for waivers to be granted faster and with fewer exceptions. But only if applicants agree to give up certain rights and opportunities they might have had under the case-by-case system.

The quicker turnaround of applications is because consular offices can handle the applications directly and avoid Homeland Security approval.

What HIV-positive travelers give up is the opportunity to change their visa status while in the U.S. and the opportunity to seek legal permanent residency or apply for a job. The new regulations also prohibit some visitors from conducting business while here.

People with HIV are no longer able to seek asylum in the U.S. under the new rules, either.

�More than two decades into this epidemic, the United States continues to stigmatize people with HIV and treat this illness unlike any other virus,� said Neilson. �Creating insurmountable hurdles to travel does nothing to protect the American public from HIV.

�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.� said Gay Men�s Health Crisis assistant director of research and federal affairs Nancy Ordover.

�We want a true categorical waiver,� said Neilson, �that is short-term and with no inquiry into HIV status, which would make it consistent with other diseases.�

Neilson, Ordover and others criticized another feature of the new regulations: a short period of time for public comment.

Homeland Security published the proposal November 6 and cut off comment after only 30 days, including the Thanksgiving holiday.

Homeland Security spokesperson Marilu Cabrera said regulation changes typically remain open for comment for 60 to 90 days �depending on the complexity of the issue.�

Asked why this one got only 30 days, Cabrera answered, �I don�t know.�

Neilson said the only fair solution is to amend the 1952 law to get rid of the ban. Those sentiments are echoed by Physicians for Human Rights, which said in a statement that the proposed regulations �increase the obstacles for people living with HIV who seek to visit the United States.�

Democratic Rep. Barbara Lee of California has introduced a bill that would appoint a commission to recommend changed to the 1952 law. Her �HIV Nondiscrimination in Travel and Immigration Act of 2007� has gotten little attention from House leadership.