CDC proposes removing barrier for admissibility and immigrant benefits

By Antoine Craigwell

(New York, NY) - The U.S. Centers for Disease Control (CDC) announced that it is proposing a change to a rule barring immigrants with HIV from entry to the country or aliens from being eligible for immigration benefits. In a 70-page notice signed by U.S. Secretary of Health, Kathleen Sebelius, and sent to the federal register dated Jun 30, 2009, for publication on Jul 2, 2009, the CDC proposed removing the barrier that HIV is a communicable disease.



In Jul 2008, President George Bush signed a law authorizing the Department of Health and Human Services (DHHS) to lift the ban on foreigners with HIV entering the United States. But, despite the authorization, the ban had not been stricken from the DHHS regulations, rather, the Department of Homeland Security had instituted a series of measures designed to "streamline" the process for entry into the U.S. for people living with HIV. The DHHS, until recently, had deemed ineligible for immigrant benefits or inadmissible any HIV-positive alien in the United States seeking adjustment of status or anyone coming into the country.

This announcement comes on the heels of the 60 HIV-positive Canadians denied entry into the United States to attend a Jun 2009 summit on housing for HIV-positive people. As a rule change, it would allow the U.S. to host the annual International AIDS conference, which has been held in other countries, most recently in Mexico City, because the U.S., as one of a number of countries, including Brunei, Egypt, Iraq, Yemen, Malaysia, Oman, Qatar, Singapore, Sudan, South Korea, Tunisia, Turks & Caicos Islands and the United Arab Emirates; to bar HIV-positive people from entering the country.
Up until this announcement, the DHHS operated on granting waivers for HIV-positive people to enter the U.S., but which could take a long time to be approved; applications for HIV waivers to the CDC are also required for HIV-positive aliens residing in the U.S. who are seeking adjustment of status.
The CDC notice referred to 42 CFR Part 34, Docket No. CDC-2008-0001, stated that it is proposing to revise Part 34, the "Medical Examination of Aliens - Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance," and is proposing to remove references to HIV from the scope of examinations in its regulations.

According to the notice, aliens infected with a "communicable disease of public health significance" are inadmissible into the United States under the Immigration and Nationality Act (INA). But, providing historical context, the notice continued, that the Tom Lanton and Henry Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, part of the Jul 2008 legislation reauthorizing the President's Emergency Plan for AIDS Relief (PEPFAR) had removed language from the INA, which had previously mandated that HIV be on the list of diseases that bars entry into the U.S.

While HIV infection is a serious health condition, it does not represent a communicable disease that is a significant threat for introduction, transmission, and spread to the U.S. population through casual contact. As a result of these proposed regulatory changes, aliens would no longer be inadmissible into the United States based solely on the grounds they are infected with HIV and they would no longer undergo HIV testing as part of the routine medical examination.

An arriving alien with HIV infection does not pose a public health risk to the general population through casual contact,” the notice said. Tuberculosis, spread for example in aerosol or droplet form, remain a communicable disease. 

The policy rule change, according to the notice, means that previously, HIV-positive aliens already resident in the United States, who were considered inadmissible for immigrant benefits; are now eligible to apply for adjustment of status under relevant visa categories.

"Aliens who are already in the United States may apply to adjust to permanent resident status pursuant to the family based and employment-based categories described above, as well as several other statutorily-eligible adjustment categories," said the notice.

The notice also mentioned that once where medical examinations that included a HIV test were required, under the proposed rule, "testing for HIV infection would be eliminated from these medical examinations," because the scientific rationale for excluding someone who is HIV-positive no longer applies.

The DHHS currently requires that if an applicant is infected with HIV and is in the Temporary Protected Status (TPS) - coming from a country with ongoing armed conflict, natural disasters or certain other extraordinary and temporary conditions who were considered inadmissible on medical grounds - are granted a waiver of inadmissibility before TPS is granted.
From a global context, the notice refers to the 2004 Joint United Nations Programme on HIV/AIDS (UNAIDS) and the International Organization for Migration (IOM) which issued a document: "UNAIDS/IOM Statement on HIV/AIDS-related travel restrictions," and which provides guidance to governments regarding addressing the public health, economic, and human rights concerns involved in HIV-related travel restrictions. The document concluded that "HIV-related travel restrictions have no public health justification."