October 1, 2008

DHS Announces Streamlined Issuance of Nonimmigrant Visas for HIV-Positive Individuals to Enter the United States

On September 29, 2008, the U.S. Department of Homeland Security (DHS) published its final rule to streamline the issuance of short-term nonimmigrant B-1 or B-2 visas, for stays up to 30 days, to individuals with the Human Immunodeficiency Virus (HIV), who are otherwise eligible to enter the United States. Under this new rule, officers at the U.S. embassies and consulates abroad will be authorized to grant temporary nonimmigrant visas to HIV positive individuals who are otherwise eligible to enter the United States and whose activities will not pose a public health risk in the United States. Visas issued under this rule will not publicly identify any individual as being HIV-positive.

To qualify under this rule, the applicant for the temporary nonimmigrant B-1 or B-2 visa must show that: (1) he/she has tested HIV positive; (2) he/she is not currently exhibiting symptoms of an active, contagious infection associate with acquired immune deficiency syndrome (AIDS); (3) he/she is aware of, has been counseled on and understands the nature, severity and communicability of his/her medical condition; (4) his/her admission posses a minimal risk of danger to the public health and risk of transmission; (5) he/she will have possession of or access to an adequate supply of antiretroviral medication and sufficient assets for his/her stay, such as insurance to cover any medical care required; (6) his/her admission will not create any costs to the U.S.; (7) he/she is seeking admission solely for activities consistent with B-1 or B-2 status; (8) he/she is aware that admission is limited to a 30 day period per admission; (9) he/she cannot otherwise be inadmissible to the United States; (10) he/she must be aware that he/she is inadmissible under the visa waiver program; (11) he/she is aware that the failure to comply with any condition of admission makes him/her ineligible for further admission under this provision; and (12) he/she waives the opportunity to apply for an extension of nonimmigrant status (unless an emergency prevents the applicant from leaving the United States), change of nonimmigrant status, or adjustment of status to permanent resident.

Applicants who do not qualify for admission under this new rule may continue to follow the existing process which requires a case-by-case determination of eligibility for an individual waiver.