THE TIME HAS COME TO END THE HIV BAN ON TRAVEL AND IMMIGRATION

It’s time for the U.S. to end this anachronistic and discriminatory ban and treat foreign nationals with HIV with the dignity and respect they deserve.

by Victoria Neilson
Legal Director
Immigration Equality

I feel a little beyond my ken addressing issues of gay men’s health since I’m an immigration attorney, but I think that it’s important for anyone who cares about HIV issues to be aware of the discrimination against foreign nationals with HIV which continues to exist under U.S. immigration law, and our hope that this law will soon change. “Foreign national,” is a broad term (the Immigration Service and press often use the term “alien.”) This term encompasses short-term visitors, such as tourists, students, long-term temporary workers, and “green card” applicants, such as relatives of Americans, diversify visa lottery winners, and refugees and asylees.

Under current law, any HIV-positive foreign national seeking to enter the U.S. short-term or seeking to obtain a “green card” here, is barred by law from doing so. Even if that person wants to enter for just one day, he cannot do so without first going through an onerous waiver process.

For “green card” applicants, an HIV waiver is only available if the applicant has a close relative who is a U.S. citizen or legal permanent resident, or if the applicant is an asylee or refugee. Since long-term same-sex partnerships are not recognized under U.S. immigration law, the HIV ban disproportionately discriminates against LGBT foreign nationals who are less likely to have relationships with U.S. citizens or “green card” holders which would qualify them for a waiver.

In 1993, when President Clinton sought to change this policy and remove HIV from the Department of Health and Human Services (“HHS”) list of “communicable diseases of public health significance,” Congress espoused overt homophobia, claiming that Clinton had kowtowed enough to the homosexual lobby, and inserted HIV directly into the Immigration and Nationality Act. This made HIV the only medical condition which barred entry by statute, as well as by HHS regulation.

Finally, 15 years later, Senators John Kerry and Gordon Smith, and Congresswoman Barbara Lee, were able to insert language eliminating the statutory HIV ban into the President’s Emergency Plan for AIDS Relief (PEPFAR) bill which was signed into law on July 30, 2008. It is significant that Congress and the President passed this legislation as part of PEPFAR because the HIV ban has tainted our image as the purported leader in the fight against AIDS abroad while we continue to discriminate against those with HIV at home.

The removal of the statutory HIV ban was a huge first step toward equality under the law for foreign nationals with HIV. The ban is still in effect, however, until HHS removes HIV from its list of “communicable diseases of public health significance.” The Director of the Centers for Disease Control Julie Gerberding stated in a letter to the Washington Post on October 6, 2008, “this administration is committed to removing HIV infection [from the HHS list] as soon as possible.” We hope she’s right. It’s time for the U.S. to end this anachronistic and discriminatory ban and treat foreign nationals with HIV with the dignity and respect they deserve.


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