Nov 22, 2007  |  By: LOU CHIBBARO J  | COMMENTS     

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Under the existing rules, a decision on whether to grant a waiver to the ban on HIV-positive visitors is made on a case by case basis by the State Department, the DHS, or, in certain instances, by a U.S. consular officer in the applicant’s country.

Officials making the decision must determine that “danger to the public health in the U.S. would be minimal,” the possibility of the visitor transmitting the virus is minimal, and any expenses for medical care in the U.S. would be born by the visitor through his or her medical insurance.

The current rules also limit visits to the U.S. to 30 days and allow such visits for tourism or business or for other purposes deemed appropriate, such as attending a scientific or professional meeting or special event, or visiting a family member. A special notation indicating the visitor has received an HIV exemption by the U.S. is stamped on his or her passport.

The new rules would leave all of these criteria in place but would fold them into a “categorical” application process that could be decided by a U.S. consular official in the visitor’s home country rather than waiting for a decision by an official in Washington.

However, the new rules include certain criteria that are not included in the existing rules, such as the condition barring a visitor from obtaining permanent resident status

They also include a requirement that an applicant demonstrate to the consular officer that he or she is in a “controlled state of HIV such that there is no anticipated need for additional medical care” in the U.S.

In addition, the new rules call on the consular officer to determine the possibility that an HIV-infected visitor would transmit HIV to someone else is “minimal,” and that they have an adequate supply of antiretroviral drugs to last their entire stay in the U.S.

“[T]he question arises, what will count as evidence?” a Gay Men’s Health Crisis analysis of the proposed new rules asks. “Are [consular officers] truly equipped to make determinations regarding medical etiology, medication, transmission, public health, etc.?”

The new rules don’t overtly ban a visitor with HIV from applying for U.S. political asylum, but they require such a visitor to waive any option for staying in the U.S. longer than 30 days and for seeking permanent resident status through the so-called “green card” process.
 
“What this means is you can apply for asylum but you could not get the ultimate benefit
of asylum—permanent U.S. resident status,” said Adam Francoeur, an attorney with Immigration Equality.

Officials with GMHC and Immigration Equality said they are preparing comments calling for changes in the proposed rules, which they will submit to DH