United States HIV Immigration and Travel Policy

[This scumbag legislation was only overturned by Obama -- but here's how the stinking pile of steaming shit looked during the previous 20 years]

  In addition to the United States, only Armenia, Brunei, China,
 Iraq, South Korea, Moldavia, Russia, and Saudi Arabia
practice this particular form of discrimination.

The heinous HIV travel and immigration ban was codified in law as part of the NIH reauthorization in 1993 (s.1/h.r 4), the NIH's reauthorization act (entitled the NIH Revitalization Act of 1993).

However, remember that well before 1993, this ban made world news when a Dutch PWA (Hans Paul Verhoff) was denied entry into the U.S. in 1989 to speak at a conference in San Francisco and this same ban was the cause of the massive boycott of the 6th International Conference on AIDS in SF in 1990.

It was on this ban that caused the '92 International AIDS Conference to be moved from Boston to Amsterdam. It was at the
see aegis website  Tomas Fabregas Obituary
Amsterdam AIDS Conference that activists, ACT UP chapters, and Elizabeth Taylor hosted a press conference flaunting Tomas Fabregas' re-entry into the U.S. as a resident PWA.

When activists demanded the release into this country of over a hundred HIV-positive Haitian political refugees unconscionably quarantined at the U.S. Naval Base in Guantanamo Bay (Cuba), the then-current practice of restricting travel and immigration of people with HIV was made into stricter law, following President Clinton's half-assed move to issue an executive order to eliminate the Ban.  Senator Don Nickles (R-OK) initiated the amendment to the Senate version of the NIH revitalization act of 1993 (which gave the OAR budgetary authority among other things) and the House followed suit with an express "motion to instruct" the House conferees to make sure that the travel and immigration ban stuck through the conferencing of the legislation. Clinton signed the bill into law furthering restrictions on HIV entry into the U.S.

Archived ATN Alert (1993)   The U.S. Senate passed an amendment to the National Institutes of Health Reauthorization Bill on Feb. 18 that would make the current Bush Administration policy to ban immigration for people with HIV into law. Called the Nichols Amendment, it excludes any foreigner with HIV from entering the United States. AIDS activists have fought since 1987 to remove the HIV immigration restrictions because they discriminate against people with HIV and further the spread of the epidemic by driving immigrants at risk of HIV infection underground. The Clinton Administration has the authority to allow the Haitian refugees into the U.S. under the humanitarian parole provisions in immigration law. We urge all our readers to please call the White House....    read more

"What we're talking about is letting people come into this country in their young years -- what liberals call raging hormones, sexually active years (look at the profile of Haitians) with a communicable, venereal disease that is always fatal. I'm not just isolating this disease or isolating Haitians; if they were all little redheads....

"I was flying into China in 1988 and I picked up the visa application and it says if you have tested positive for the 'humano-immuno-deficiency' virus, don't get off the airplane, you'll be held and turned around at the airport; now China is not a good example because it's a cruel, communist dictatorship...."

–Republican Congressman Dornan
The U.S. HIV Immigration Ban and travel restrictions became the first of many
     AIDS betrayals by the Clinton Administration, signed into law in 1993.
This is one of the lowest moments in US legislative history in dealing with HIV
    – and a sad historical legacy to what Congress is capable of doing.

    "HIV is a disease which is NOT spread to the general public through casual contact, and
        a discriminatory policy that bans HIV-positive immigrants will NOT protect us from this virus."

               Dr. David Butler-Jones, past President of the Canadian Public Health Association

People with HIV Face Continued U.S. Immigration Ban

Both HIV-infected people who wish to immigrate to the United States and non-citizens who are infected and already live here face a significant hurdle-a U.S. Immigration and Naturalization Service (INS) policy that severely restricts the ability of HIV-positive people to gain immigration status. Along with active tuberculosis and a handful of other diseases, HIV/AIDS is a health-related criterion by which U.S. immigration officials can exclude potential immigrants or deport non-citizens who are already living here.

The immigration law, upheld most recently by President Bill Clinton in 1993, further entrenched a 1987 ban on HIV-infected immigrants that disqualifies potential immigrants from entering the U.S. legally. Despite heated debate, most experts agree that this policy is unlikely to change in the near future, especially given the tightening of immigration restrictions in the wake of the September 11, 2001, terrorist attacks on the U.S.

The Big Picture
Individuals and families who arrive in the United States fall into four main categories-legal immigrants, non-immigrants, refugees and asylees, and undocumented immigrants. An individual's legal status can change after arriving in the U.S. For example, many political asylum-seekers who arrive as undocumented residents are later granted asylum.

Although testing HIV-positive will not cause immigrants to lose their existing immigration status, it does present a significant obstacle for those who wish to change their current status, especially those who seek lawful permanent residence in the U.S. Further, according to the San Francisco AIDS Foundation, INS officials may remove HIV-positive people if they entered without INS permission, although, technically, any illegal immigrant could be removed from the U.S. for that reason alone.

The ban on people with HIV infection continues a U.S. immigration history in which health-related factors have played a significant role. The HIV immigration prohibition began in 1987, when Congress enacted a measure barring people infected with HIV from entering the U.S. or establishing legal permanent residency status here. This ban reflected the public's intense fear of HIV and AIDS during the mid-80s, as well as economic concerns that HIV-positive immigrants would put undue strain on health care resources.

Guantanamo Bay
With this law on the books, HIV-positive Haitian refugees who tried to emigrate to the U.S. following the September 1991 military ouster of Jean-Bertrand Aristide, Haiti's first freely elected president, found themselves caught in political limbo. Hundreds of HIV-positive Haitians were among the tens of thousands who flooded into the U.S. following the coup. Immigration officials ruled that these Haitians had valid claims for political asylum and should not be repatriated. However, the U.S. ban on HIV-positive immigrants prevented their entering the country. As a result, they were detained and held for more than 18 months at the U.S. Naval Base at Guantanamo Bay, Cuba.

The issue came to a head in 1993, when a Federal judge ruled that the U.S. must release the HIV-positive Haitian refugees into the U.S. because they had a legitimate fear of persecution if they returned to Haiti. Initially, the U.S. refused to process their applications for political asylum, but the government ultimately agreed to do so on humanitarian grounds.

The 1993 Law
Amendments to the ban on HIV-infected immigrants were attached to the NIH Reauthorization Act of 1993, which contained a few elements that changed the status of HIV in immigration law. First, it legally codified the exclusion of HIV-infected immigrants from the U.S. This meant that the INS could keep any non-citizen who was HIV-positive out of the United States, including temporary visitors (non-immigrants) and those intending to live in the United States permanently (immigrants).

Further, the 1993 law removed the "suspension of deportation" clause that had provided crucial protection for HIV-positive non-citizens. Prior to 1993, anyone who could prove they had been in the U.S. continuously for seven years and would suffer extreme hardship if returned to their home country could be granted "suspension," without having to take a medical exam. The current law requires proof of "exceptional and extremely unusual" hardship to a family member, as opposed to the applicant himself. This change discriminates against HIV-positive individuals, because far fewer of them can prove such hardship to spouses, parents, or children than to themselves. In addition, the 1996 Defense of Marriage Act mandates that non-citizens cannot claim domestic partners and same-sex spouses as legal "spouses" for such immigration purposes.

During his presidential campaign, Clinton promised to repeal the ban on HIV-infected immigrants. However, because the 1993 measure was attached to the NIH Reauthorization Act, which included key provisions supporting AIDS, cancer, women's health, and other medical research, repealing the ban proved difficult, and AIDS advocates did not push for a veto.

Senator Don Nickles (R-OK) was the chief sponsor of the HIV amendment and Senator Jesse Helms (R-NC) also lobbied hard for it. At the time, Nickles suggested that lifting the ban "would have contributed to the spread of a deadly disease which has already infected a million Americans. It would also cost hundreds of millions of dollars at a time when we are already struggling to contain health care costs." Opponents of the ban countered by saying that the law already required immigrants seeking permanent resident status to prove that they were economically self-sufficient and that immigrants with other diseases, such as cancer, were not automatically barred.

Following is a short description of how the HIV-ban affects different groups of people:

Non-immigrants include visitors, students, temporary workers, and others. Non-citizens who want to become lawful permanent U.S. residents must take a medical exam that includes an HIV test. Those coming to the U.S. for school, work, or tourism do not need to take an HIV test but must fill out a non-immigrant visa application that asks: "Have you ever been afflicted with a communicable disease of public health significance?" INS can turn away anyone who answers "yes" to this question, unless the applicant requests a special waiver available to those who plan a short visit, for example, to attend a meeting, visit relatives, or receive medical treatment.

Usually, officials do not seek out short-term visitors who have HIV. Visitors who arrive in the U.S. and declare they have HIV, or are carrying antiretroviral drugs in their luggage, are usually questioned about the nature of their visit and then allowed to enter the country. Statistics are not kept on the number of visitors who are excluded, however, according to the San Francisco AIDS Foundation.
Although the exclusion law covers those entering the U.S. for both short-term and permanent residence, the law's impact is more severe for those seeking permanent residence, or those who already live in the U.S. and wish to remain here.

Refugees and Asylees
Refugees and asylees are two groups whose legal rights in this area are closely linked. A refugee is defined by the U.N. High Commission for Refugees as "a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership [in] a particular social group, or political opinion...is outside the country of his nationality." Refugees apply for and receive asylum status before coming to the United States. INS recognizes persecution based on sexual orientation or HIV status as grounds for asylum, and implied political opinion can also constitute grounds in cases where persecution might be based on the assumption that someone who is HIV-positive is necessarily an AIDS activist.

In contrast, asylees seek asylum upon or after entering the U.S. If asylum is not granted, the individual is usually deported. Although the asylum process does not require a physical examination, those who are granted asylum can apply for lawful permanent residence a year later, at which time such an exam is required. Asylees may then request an HIV waiver "for humanitarian purposes."

Legal Immigrants
Legal immigrants are those who intend to live permanently in the U.S. Lawful permanent residents are non-citizens who make the U.S. their permanent home and are permitted to work in the U.S. Most people want to become lawful permanent residents and receive the accompanying "green card" because such status provides the most security and public benefits short of citizenship.

As part of the application process, those who wish to become lawful permanent residents must take a medical exam that includes an HIV test. Applicants who test positive cannot become lawful permanent residents unless they get an HIV waiver. After long absences, legal permanent residents can be prevented from re-entering the U.S.

Citizenship Applicants
Applicants for U.S. citizenship do not have to be tested for HIV, and being HIV-positive does not in itself prevent people from becoming citizens. Nevertheless, the San Francisco AIDS Foundation "Manual on HIV and Immigrants" observes that HIV-positive applicants often encounter other obstacles when they attempt to become citizens. For example, it is sometimes claimed that approval for lawful permanent residence was granted in error if an individual was HIV-positive at that time. Or an applicant's moral character might be called into question on the basis of past or present drug use.

Impact of the Law
Because HIV-positive people living in the U.S. fear deportation, they may be unwilling to apply for more secure immigration status that would require them to undergo an HIV test. As a result, individuals may remain in an immigration status that restricts access to health care and limits the ability to relocate, work legally, or change jobs.

On the other hand, many immigrants who suspect they have HIV avoid testing, and many who know they are HIV-positive do not seek medical care for fear that doing so could thwart their chances of being granted legal residency. They may also opt to avoid the public health system, going "underground" so that their HIV-positive status remains unknown and foregoing treatment until it is medically unavoidable. For example, a recent study found that 70 percent of patients diagnosed with AIDS at La Clinica del Pueblo, a clinic serving Central American immigrants in Washington, D.C., arrived at near-death stages of the disease.

Clearly, the decision to avoid HIV testing has significant public health repurcussions, since efforts to prevent the spread of AIDS rely heavily on the willingness of infected individuals to adopt safer sex and other harm reduction practices.

Opponents of the federal ban argue that it stigmatizes people with HIV unfairly, and that because the virus is not spread through casual contact, there is no persuasive public health rationale for banning HIV-infected immigrants.

Supporters of the law say it is needed to limit the spread of HIV in this country and stress concerns that HIV-positive immigrants would drain money and other resources from the U.S. health care system, essentially forcing taxpayers to subsidize their AIDS treatment. This economic argument is far from clear-cut, however, given both the lack of any official estimate of the likely economic burden of caring for HIV-infected immigrants, and the fact that the government provides health care services to immigrants with many other diseases.

The issue is further complicated by the fact that roughly two-thirds of those who would be removed from the U.S. because they are HIV-positive are already living here, waiting to apply for permanent residency or citizenship status. What's more, experts believe that many of these individuals contracted HIV while in this country.

Not surprisingly, the ban on HIV-infected immigrants has negatively impacted the reputation of the U.S. within the international AIDS research community. Most notably, the important biennial International AIDS Conference has not been held in the United States since 1990, in protest against the U.S. immigration policy, and will not return until the ban is lifted.

Since September 11, 2001, immigration policy has toughened considerably, and the ban on HIV-infected immigrants is unlikely to change in the near future. Indeed, immigration experts who study this issue say that the mood created by the terrorist attacks has left immigrants much more vulnerable-and HIV-positive immigrants especially vulnerable, particularly during a period of continued economic uncertainty. In the meantime, HIV-infected people, who already face a daily struggle with their illness, will continue to face a significant obstacle in securing legal immigrant status.

Entry & Residency Regulations on 168 Countries for People with HIV/AIDS >>>
www.aidsnet.ch/linkto/immigration   now online in English, Deutsch , Français, and Italiano           
Comprehensive information and suggestions for entering the USA >>>

    HIV/AIDS & Immigrants: Manual for Service Providers

   National Immigration Law Center 

     AmFAR : Public Policy: People with HIV Face U.S. Immigration Ban 

 "We are now a global gene pool because of international travel, so the need is to deal
 with these problems on a global level. One cannot think of them as geographically
isolated, or hermetically sealed."
           Dr. Ken Mayer   Professor of Medicine and Community Health, Brown University/Miriam Hospital

Village Voice June 30, 1999
Body Politics by Sharon Lerner

"Banned From Pride   The INS Blocks A Visitor With HIV"

Ken was on his way from Toronto last Wednesday to spend Gay Pride week in New York City with a friend on the Upper East Side. "We were going to go to a couple of parties, hang out in a nightclub he is working in, go to the pier and dance," says Ken. But instead of celebrating, Ken, who is Canadian, ended up being barred from the U.S. by the Immigration and Naturalization Service.

First, an INS agent picked Ken- and only Ken- out of the line of passengers waiting at Toronto's Pearson International Airport and took him into a private office. Then, with Ken's permission, he searched Ken's luggage until he found HIV medication. "He picked up every bottle and read each one and asked what each is for," says Ken. "I said it was for my HIV cocktail. He kept asking me for each one even though I said it's all for my HIV cocktail." Eventually the agent told Ken that he couldn't enter the U.S. because he is HIV-positive.

For Ken, the experience was demoralizing: "I feel like shit, discriminated against." But, disturbing and unfair as the agent's behavior was, it was also, shockingly, legal. Under a law that has been criticized by a phalanx of public health experts, the U.S. is allowed to bar noncitizens with HIV from entering the country. INS agents can even require a person they suspect of being HIV-positive to take an HIV test.

Most often, HIV-positive travelers make it across international borders without incident. Paul Morse, co-owner of the gay travel agency that made the arrangements for Ken's trip, says he has booked thousands of trips into the U.S.- many of them for people with HIV- and has never before heard of anyone being denied entry for being HIV-positive. And the International Gay & Lesbian Travel Association's guide, Out & About, writes that, while some countries excluded HIV-positive travelers in the early 1980s, such screening "no longer appears to be a problem." Ken himself says he has made the trip at least 50 times before without being questioned about his HIV status.

Ken, who is Asian and tattooed, thinks his appearance may have had to do with his being stopped. Even though he wore a long-sleeved, buttoned-up shirt to cover his tattoos- and even though Ken says others in line "looked a bit more peculiar than me"- the agent seems to have fingered him as gay from a distance.

When asked about Ken's story, Russ Bergeron, an INS spokesperson, said that appearance can be a factor in deciding how to question people entering the country. But he insists that consideration "is in no way linked to issues of health or sexual preference." So, if Ken was targeted because of how he looked, it was just standard for the INS, in keeping with a widely recognized practice of eyeballing that bears a striking parallel to cops' profiling of young black men.

But in his case, Ken thinks, the authorities were keeping their eyes out for gay people. "They're probably on some kind of special crackdown because of Gay Pride week," speculates Ken. Bergeron insists that isn't so, however, saying, "There have been no special field operating instructions issued to our points of entry calling for increased scrutiny as a result of Gay Pride week."

And, though he admits there is no guarantee they would be granted them, Bergeron also points out that HIV-positive travelers attending Gay Pride can apply for waivers to the ban. That's in keeping with the government's policy of issuing waivers for travelers seeking medical treatment or attending special events. Immigrants can also get around the HIV test, which is part of the application for residence, if they have sponsorship from relatives who live here. (This provision doesn't offer much solace to gay people, who are unable to legally marry their partners and, more often than straights, estranged from their families.)

Some other countries, including Canada, also have the legal right to deny entry to travelers with HIV when they discover them. But most European nations have no special travel restrictions for people with HIV. And many others, including Thailand, Costa Rica, and South Africa, have recently lifted bans on HIV-positive travelers.

Meanwhile, in the U.S., restrictions on HIV-positive foreigners- while not often put to use- are becoming more entrenched. This is despite the efforts of the World Health Organization, the American Public Health Association, and even the U.S. Department of Health and Human Services, all of which have weighed in against excluding people with HIV. (They point out that, unlike other diseases for which people may be barred from the U.S., AIDS could not be transmitted casually.) But ban supporters have argued successfully that people with HIV may endanger American citizens and that their illnesses could pose a burden to the health care system.

AIDS activists took the issue on full force when it first surfaced. In 1990, advocates and scientists at the international AIDS conference in San Francisco took to the streets to protest the exclusion of HIV- positive visitors. The International Gay and Lesbian Human Rights Commission launched a campaign to reverse then president Bush's position on the issue. And waves of angry letters and faxes poured in to legislators whenever well-connected people were banned from the country because of HIV.

Nevertheless, in 1993, President Clinton signed a law barring HIV-infected aliens from entering the country. And over the years, outrage has shifted to other issues. As IGLHRC's Jaime Balboa explains, "Now activists are prioritizing access to medications as their focus." Also, says Balboa, "There are ways for people who want to travel to keep from being discovered. One can be a closeted HIV person for matters of safety."

Out & About suggests one such closeting technique: telling customs agents that HIV medications are for kidney cancer and heart disease. Why didn't Ken do that? "I didn't want to lie," says Ken, who adds, "It just never occurred to me this could really happen."  slerner@villagevoice.com

Drive to end U.S. Curb on HIV visitors

Sarah Boseley, health editor, The Guardian http://www.advocacyonline.net/tht/index.htm
Tuesday March 5, 2002

People who are HIV positive are being effectively criminalised by entry restrictions imposed by the US which forbid most of them from settling in the country and force short-term travellers to declare their HIV status or lie, according to the Terrence Higgins Trust.

The HIV/Aids charity is launching a campaign to try to persuade the US government to change the rules which its head of policy, Lisa Power, said were based on "panic, misinformation and prejudice". Many people with HIV do not realise they will be asked to declare their status until they begin to fill in the green arrivals form on the plane, said the charity.

The problem featured in last week's EastEnders. Mark Fowler, who is HIV positive, was planning to emigrate to the US with friends, but suddenly found out that US law bars people with HIV from settling there.

The US legislation was pushed through by Senator Jesse Helm during the Aids panic of the 1980s, but has never been rescinded. It forbids immigration and requires anybody who is HIV positive to obtain a visa waiver to enter the US - their passport is endorsed to show that they may not enter without the waiver, which must be renegotiated on each entry.

Since visas are no longer required for short-term business travellers or tourists who are British citizens, many people with HIV do not discover the need for a waiver until they fill in the arrivals form on the plane which asks them to declare if they are HIV positive - placing them in the same category as terrorists, drug dealers and other criminals.

Many people with HIV have to travel with large quantities of pills. Those who decide to lie, in order not to be stopped and questioned at immigration and be logged as HIV positive on the US authorities' databases, risk discovery if their baggage is searched.

"The US embassy says that anybody can get a visa waiver, but to get that you have to have a stamp in your passport saying you are not eligible to enter the US," said Ms Power.

It can cause problems on entering other countries, where immigration officers want to know why the passport holder is barred from the US. To obtain a waiver, the applicant also has to show they have sufficient health insurance to pay for treatment needed while in the US -- but many UK companies exclude HIV/Aids treatment from their policies.

The US embassy said the system worked well. Inadmissability because of HIV/Aids "is routinely waived", a spokesman said. "People are given visas and the waiver many times and do travel on holidays, business and as students. It is a public health issue. In some cases it is a financial concern as well. It is not saying there is anything wrong with the person."

Hindered by disease

· John, a British scientist, spent 10 years in the US doing medical research. He entered the green card lottery and applied on the basis of his scientific credentials. He was accepted. But then the law banning those with HIV was passed and he was refused.

· Matti, a research scientist, was offered a place on a scientific education/work exchange in the US. She applied for a visa waiver as someone living with HIV and was summoned to the US embassy. The interviewer made offensive comments. Matti got a waiver but her passport now identifies her as HIV positive.

· Harry, an authority on human rights, was asked to join a British government dele- gation to the UN. He obtained a visa waiver, but on arrival US immigration authorities questioned him. Only the intervention of the government delegation got him released.

Should we ban HIV-positive immigrants?

Jonathan Rauch, senior writer for National Journal magazine, says no. He argues that allowing HIV-positive individuals to apply for residence will bring those individuals into mainstream medical institutions. The alternative may bring undocumented HIV-positive individuals who never receive good medical care or perhaps never even discover their HIV status, infecting others in the process. Rauch writes:

The ban on aliens with HIV was first imposed administratively, by the Public Health Service, in 1987, when fear of AIDS was at its peak and the disease was effectively untreatable. As therapies became available, public health authorities soon came to believe that the policy merely drove the disease underground and thus was ineffective, if not counterproductive. The first Bush administration and then the Clinton administration tried to revoke it. To no avail: In 1993, Congress wrote the HIV ban into law. No other disease faces such a statutory ban.

Even in 1993, the ban made little sense. America was the world's epicenter of AIDS, exporting rather than importing the disease, and so aliens were far more likely to get HIV in America than to bring it in. Anyway, the policy never required an HIV test for entry; only when an alien seeks permanent-resident status, usually after having already been in the country for years, is the blood test routinely required. So the policy, as put into practice, is about kicking people out, not keeping them out.

Congress was worried about the costs of welfare and publicly funded care for immigrants with AIDS. A valid concern, but one addressed by the underlying immigration law, which bars aliens deemed likely to become a "public charge," whatever their disease. Today, diabetics and cancer patients can visit and live in the United States on showing they have insurance or resources to keep themselves off the welfare rolls; only people with HIV are barred, whether they are sick or not. This is discrimination, pure and simple.

Canadians Favour AIDS Tests for Immigrants
 _ June 7, 2000     Vancouver Sun

The majority of Canadians believe immigrants should be screened for HIV and be prohibited from entering the country, if they test positive. Polling conducted for Health Canada shows that most residents believe the costs of caring for HIV-infected immigrants is too high. Canada currently requires only tuberculosis and syphilis testing for immigrants. While the survey found that most people believe healthy immigrants should have priority over sick ones, an HIV support group also noted that requiring the test would make immigrants the first in the country to undergo mandatory HIV screening.

New 2005  Q&A providing an explanation of immigration law and policy in Canada as it affects
   people living with HIV/AIDS
      –recently released report reflecting some favorable changes 
 download pdf   www.aidslaw.ca/Maincontent/issues/Immigration/ImmigrationQ&A2005.pdf
                    en Français   www.aidslaw.ca/francais/Contenu/themes/ImmigrationF/ImmigrationQ&A2005-f.pdf

Global Challenges    June 15, 2004

UNAIDS, International Organization for Migration Call for End to Restrictions on Travel for HIV-Positive People

UNAIDS and the International Organization for Migration have have called on 60 nations -- including the United States -- to end their policies requiring mandatory HIV testing to prevent HIV-positive people from entering the countries, VOA News reports. In addition to the United States, Russia and many Arab countries have mandatory HIV testing policies, some of which require tests even for short-term visitors, including business people or tourists. IOM HIV/AIDS Coordinator Mary Haour-Knipe said there is "no public health justification" for the policies, which "ad[d] to the climate of stigma and discrimination against people living with HIV." Stigma in turn "drives the disease underground" and prevents people from seeking testing and treatment, Haour-Knipe said, according to VOA News. In addition, imposing restrictions on the entry of foreign HIV-positive people gives the appearance that the disease is a foreign problem that can be controlled with border restrictions, Haour-Knipe said, VOA News reports (Schlein, VOA News, 6/12).

Troubles for HIV-Positive Immigrants Coming to America for the Staying Alive Conference

Getting to Staying Alive in Atlanta was challenging for many American participants.  But coming to America to attend the Staying Alive Conference when you are HIV-positive creates a whole other host of problems. During Staying Alive, conference participants from Guyana, Haiti, St. Lucia Trinidad and Tobago and Tanzania met and discussed how laws in theUnited States geared toward denying entry to HIV-positive non-citizens (both immigrants and non-immigrant visitors) affected their visit toAtlanta. While traveling to the conference, international attendees were delayed by immigration officials, intimidated, questioned like criminals and often forced to acknowledge their HIV status.

Alex Margery, chairman of the Tanzania Network of People Living with HIV/AIDS (TANEPHA), was detained by immigration officials, causing him to miss his original flight. “He asked me ‘what is “Staying Alive?’” said Margery.  “When I explained what it was he asked if I was HIV-positive.  I said yes. He told me to go sit over there. I didn’t want to get in trouble for not answering honestly. I didn’t want him to find out the truth later and deny me entry.”

Non-immigrant visa applicants are not required to be tested for HIV or undergo a medical exam. Nor are they directly asked whether they are HIV-infected. The visa application form, however, does ask whether the individual has a "communicable disease of public health significance." All of our visitors were asked about their participation in Staying Alive. Mr. Davis, president of a support group for PLWHAs in St. Lucia, said, “When they asked me if I had AIDS, I said no and they let me go.”

This policy is under the Immigration and Nationality Act and was adopted by the former U.S. Immigration and Naturalization Service, now U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security. Subsequently the U.S. Congress put this exclusion into the Act:

"Any alien . . . who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome" is ineligible to receive a visa and ineligible to be admitted to the United States.”

           In addition to the United States, only Armenia, Brunei, China, Fiji, Iraq,
             South Korea, Moldavia, the Russian Federation, and Saudi Arabia
            practice this particular form of discrimination.

  “If you tell them you are positive, it may mean trouble for you,”
said Dexter Andries, a board member for the
  Guyanese Network of Persons Living with HIV/AIDS.

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      December 1st  2006

April 19, 2007
Revisiting the HIV Travel Ban
Public health experts and AIDS advocates met in Washington, DC, last week to discuss ways to ease or even overturn the ban on HIV positive foreign visitors to the U.S. that Congress passed into law in 1993. The discussion followed President Bush’s World AIDS Day announcement last year that he would issue an executive order to allow short-term positive visitors, though only Congress can repeal the law.

Advocates take on U.S. HIV 'travel ban'
BAY AREA REPORTER  Published April 19, 2007   by Bob Roehr

The U.S. "travel ban" on HIV-positive foreign visitors and immigrants is a vestige of the darkest days of the epidemic. It may be drastically modified or even eliminated completely if the organizers of an April 12 forum in Washington, D.C., have their way.

U.S. authorities always have had the power to bar foreigners who pose a public health threat from entering the country. That was interpreted to exclude a HIV-positive Dutch visitor traveling to speak in the U.S. in 1989. It sparked a protest at the International AIDS Conference in San Francisco in 1990 and the conference vowed not to return until U.S. policy changes. The World Health Organization has called the policy a violation of human rights.

But Congress codified the policy into law in 1993, despite objections from then-Secretary of Health and Human Services Louis Sullivan. It specifically prohibited foreigners from becoming immigrants or even obtaining a visa to visit the U.S. if they are HIV-positive. However, the provision may be waived on an individual basis if it is deemed to be in the best interest of the U.S. to do so. Blanket waivers have been issued for specific events such as the Gay Games in Chicago.

Attending the International AIDS Conference in Toronto last summer "brought home in a very powerful and real way that it is forbidden to have such a thing on U.S. soil," said J. Stephen Morrison, executive director of the Center for Strategic and International Studies. He said the U.S. policy "is misaligned with current realities and evolving U.S. interests;" and that it is time to consider a change.

Phillip Nieburg, co-author of a report that lays out the history of the policy and how it might be changed, said that the knowledge base around HIV has grown since 1993 and it is clear that HIV is not an easily spread contagious disease. There is no public health justification for the law, he said.

Helene Gayle has been a leading expert on HIV prevention at the Centers for Disease Control and Prevention and the Gates Foundation, and is now president of CARE, a large international charity working in the developing world.

She said the law is not consistent with the international leadership role on HIV that the U.S. has demonstrated with PEPFAR, the President's Emergency Plan for AIDS Relief.

"It is just one more thing where we are out of line and inconsistent with what we are trying to do," she said.

Critics of the waiver process for short-term visitors say that many persons do not know that they are HIV-positive when they apply for a visa. For those who do know, disclosing that to a State Department official runs the risk that the official or local support staff might disclose that medically confidential information. In many countries, that can lead to stigma and discrimination within the society. Furthermore, the application fee for the waiver can be prohibitive for persons with low incomes.

The Bush administration acknowledges the privacy concerns and on World AIDS Day, December 1, 2006, President Bush surprised AIDS advocates by quietly announcing that he would issue an executive order addressing those concerns.

Rising from the audience last week, Tom Walsh, with the Office of the U.S. Global AIDS Coordinator at the Department of State, told the forum, "The process is under way, it is complex, and I wish there was more that I could say." Others have said that delay is due to trying to work within the confines of the law so as not to require new legislation.

Supporters of the current law fear that people who are HIV-positive who enter the country either as immigrants or on short-term visas will stay and add to the burden of already stressed AIDS services. They can point to what happened after the International AIDS Conference in Toronto last summer; more than 150 HIV-positive attendees chose to remain in Canada and seek asylum. The claimants said they feared discrimination or worse in their own countries. The cost of drugs alone for those people would run about $1 million a year in the U.S.

Nieburg called that argument inherently discriminatory, given that other costly chronic health problems are not singled out for a blanket ban but are handled on a case-by-case basis.

"Moving Beyond the U.S. Government Policy of Inadmissibility of NIH-Infected Noncitizens" is available at http://www.csis.org/media/csis/pubs/movingbeyondinadmissibility.pdf   (pdf)

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