March 13, 2008

Congress Set to Repeal Ban on HIV Positive Immigrants

On Monday, March 10, 2008, the Senate introduced stand-alone legislation to be included in President Bush's Emergency Plan for AIDS Relief ("PEPFAR") that would repeal the 15 year-old U.S. immigration law that restricts travel to the U.S. and the admission of HIV-positive persons. The United States is one of only 13 countries that prohibits HIV-positive foreign nationals from entering the U.S. without a special waiver from the Department of Homeland Security. Even the limited waiver is only available to some nonimmigrants.

During World AIDS Day in 2007, the Bush Administration acknowledged problems with existing law, which restricted the admission of HIV positive people and proposed changing the rules to make it easier for HIV positive people to enter the United States. In response, the Department of Homeland Security drafted a regulation, which has not been finalized, to amend these rules. However, the Department of Homeland Security's proposed regulation has been heavily criticized because it fails to lessen the restrictions and instead, transfers responsibility for adjudication of the waivers to U.S. Consulates and also requires applicants to agree to relinquish the right to apply for longer stays and to apply for permanent residency.

The HIV Non-Discrimination in Travel and Immigration Act was introduced by Senators John Kerry (D-MA) and Gordon Smith (R-OR) in December 2007 to repeal the ban. Representative Barbara Lee introduced the legislation in August 2007 in the House of Representatives. The legislation is expected to be considered by the Senate Committee on Foreign Relations this week.