Since the introduction of highly active antiretroviral treatment (HAART) in 1996, there have been substantial reductions in deaths and hospital admission rates in the developed nations. Increasing numbers of HIV-infected people are back in work and are travelling for holiday, family or business reasons. Some countries impose regulations that restrict the travel of those known to be HIV-positive. Such regulations are not based on scientific or medical grounds and cannot be considered an efficient way to restrict the further spread of the HIV epidemic.
Currently, the USA is one of 15 countries to effectively ban HIV-positive travellers from entry (
http://www.travel.state.gov/visa). The USA legislation against HIV-positive tourists was introduced in 1987 during the HIV/AIDS pandemic by Senator Jesse Helms. It requires anybody who is HIV-infected to apply for a visa to enter the USA by personal interview at a US embassy, and it may take 3 months or longer to obtain the visa. The person's passport is endorsed to show that they may not enter without the visa, which must be renegotiated for each entry. This can cause further HIV disclosure issues on entering other countries where immigration officers may want to know why the passport holder is barred from the USA.
The Visa Waiver Program allows citizens of 27 countries, including the UK, to enter the USA without a visa for up to 90 days. Yet travellers to the USA who are HIV-positive are not eligible to travel visa-free under the Visa Waiver Program and need to apply for a visa and a waiver of ineligibility, which is granted under a few special circumstances.
The USA is a popular holiday destination among British HIV-positive patients. Case studies of HIV-positive travellers to the USA described by the Terence Higgins Trust have suggested that many patients travel without a visa and do not disclose their status on the visa form. Some individuals discontinue their antiretroviral drugs prior to travel, for fear of being searched at the airport, questioned and denied entry.
The common aim of the three studies conducted separately at three different centres at different time-points was to identify how many people living with HIV travelled to the USA, whether they were aware of the travel restrictions and the need for the waiver visa and whether they took out medical insurance, and to establish how they managed their antiretroviral medication.
Source:
Medscape: Free CME, Medical News, Full-text Journal Articles & More
HIV as a Ground of Inadmissibility: How it works
Two major sets of rules prevent noncitizens from entering and/or staying in the United States: the grounds of inadmissibility and deportability. HIV is not a ground of deportability, but is a ground of inadmissibility. This means DHS can "remove" someone from the United States for HIV only if the person entered the United States without government permission. DHS cannot deport people for being HIV positive or having an AIDS diagnosis if they entered on visas or now have lawful permanent residence.
Because HIV is a ground of inadmissibility, DHS may attempt to keep HIV positive individuals who are trying to enter the country, except US citizens and most lawful permanent residents, out of the United States. This includes temporary visitors (non-immigrants) and those intending to live in the United States permanently (immigrants). Another inadmissibility ground that is a barrier for many HIV positive noncitizens is the "public charge" ground, which means that an individual will be deemed dependent upon federal benefits. (See details on public charge in Part Three). Most people applying for lawful permanent residence must show they are admissible, since DHS may deny lawful permanent residence to anyone who has HIV/AIDS, whether that person applies from another country or from inside the United States.
Rejecting Noncitizens Trying to Enter the US
Although DHS does not test people for HIV when they try to enter the United States, everyone except US citizens and lawful permanent residents must get a visa to enter legally. Noncitizens who want to immigrate permanently to the United States as lawful permanent residents must submit to a medical examination that includes an HIV antibody test. People coming to the United States for other reasons, such as study, work, or a visit, must fill out a "non-immigrant" visa application which asks: "Have you ever been afflicted with a communicable disease of public health significance?"
In immigration law, "infection with the etiologic agent for acquired immune deficiency syndrome" or AIDS is specifically listed as a "communicable disease of public health significance." Since this is a reason for keeping noncitizens from entering the United States, DHS can try to turn away anyone who answers "yes" to this question. DHS also may try to keep out individuals whom agents think may be HIV positive based on evidence, such as the person carrying AIDS medications in his or her luggage. The box on Travelers with HIV has more information on how to avoid these types of problems and what to do when they happen.
Non-immigrants
If an HIV positive noncitizen applying for a non-immigrant visa knows that HIV is a communicable disease of public health significance but checks "no" on the question about communicable diseases, DHS may deny the visa because the agency regards this as fraud. If a non-immigrant visa applicant checks "yes," or if DHS suspects the person is HIV positive, DHS will deny the visa unless the applicant asks for the special waiver for visitors. This waiver is for people visiting the United States for a short time, such as to attend a conference, to visit close relatives, or to receive medical treatment. It differs from the waivers for noncitizens seeking lawful permanent residence. Also, noncitizens with HIV are not eligible to enter the United States "visa free" under the Visa Waiver Pilot Program (VWPP), which allows citizens from designated countries to enter the United States without a visa if they meet certain requirements.
Lawful Permanent Residents
Lawful permanent residents (LPRs) who plan to travel outside the United States should be aware that all the inadmissibility grounds apply to them, including the HIV and public charge grounds, if they are gone for more than 180 days or have committed criminal acts in the US or abroad. Individuals in these categories should meet with an immigration advocate before they leave the United States. In practice, however, some immigration officials at the border may subject HIV positive lawful permanent residents to additional delays or scrutiny, even those who have left for less than 180 days or have not committed criminal acts.
Applicants for Lawful Permanent Residence
DHS requires most applicants for lawful permanent residence to undergo a medical examination, which includes an HIV antibody test. This is true whether a noncitizen is applying from another country or from inside the United States. Applicants who test HIV positive cannot become lawful permanent residents unless they get an HIV waiver. Waivers are often hard to get, and not everyone is eligible. The section on the HIV Waiver explains this process in detail. Remember that there are a few categories of applicants who are not required to submit to a medical examination at all, including applicants for cancellation of removal.
The HIV Antibody Test
DHS requires most applicants for lawful permanent residence to submit to a medical examination given by a doctor on a DHS list. The doctors on this list are called "civil surgeons" even though they are not necessarily surgeons. The medical examination consists of many tests, including an HIV antibody test. Civil surgeons start by giving applicants the Enzyme-Linked Immuno-Sorbent Assay (ELISA) HIV antibody test. If the noncitizen tests positive or indeterminate, the doctor must perform another ELISA and then the Western Blot test to confirm the applicant's HIV seropositivity. If all three tests are positive, the doctor should tell the noncitizen about the test results. Whether the doctor says anything or not, the client should ask for a copy of the HIV test results. The doctor does not give the results directly to DHS, but rather gives the noncitizen the medical results in a sealed envelope. The noncitizen must bring the sealed envelope to the interview at DHS or the US embassy. State or local laws, however, may require the doctor to report HIV positive test results to state or local health departments.
Applicants for lawful permanent residence should not wait to learn their HIV status until they have to undergo the DHS medical examination. They should request an HIV test first with a local center that provides confidential or anonymous testing, so that they can weigh the risks of continuing with their applications.
Know Your Rights
Immigration border agents are not supposed to make medical determinations and a noncitizen's own admission to having HIV is not sufficient proof to deny entry. The noncitizen should be paroled in for deferred inspection for admission and undergo an HIV antibody test administered by a doctor of the Public Health Service (a doctor approved by immigration.) The doctor will notify immigration of the HIV test results. DHS may detain (jail) the noncitizen during this process or give them an appointment to return.
If a noncitizen is eligible to apply for a waiver, he or she may ask immigration for the waiver. If the noncitizen is not eligible or is later denied a waiver by immigration, he or she will then go before an immigration judge.
Because of the 1996 laws reforming many immigration procedures, DHS officers now may "summarily remove" certain noncitizens entering the United States, without a hearing with an immigration judge. This procedure is called "expedited removal" and applies to those trying to enter the United States with false or no immigration documents. It does NOT apply to HIV positive noncitizens with valid visas or to lawful permanent residents. Thus a non-immigrant or visitor with valid entry documents should not be subject to summary removal. Any noncitizen wishing to challenge their expedited removal by DHS should insist on a hearing with an immigration judge. Otherwise, a DHS agent may try to convince the noncitizen to leave the United States on the next plane or bus.
Read more...
HIV/AIDS and Immigrants: A Manual for Service Providers
Tips for Travelers
Finding HIV-related medicine or literature about AIDS in a noncitizen's bag may lead a DHS officer to ask a traveler questions about HIV. For this reason, visitors (non-immigrants) should try not to carry their HIV medicine or literature about AIDS in their luggage when they come into the United States. Other noncitizens with HIV who are leaving the US should consider bringing only the amount of medicine they will need for their trip and plan to get new medicine when they return. It is important that ALL travelers know their rights.
- If a DHS agent stops and questions a visitor (non-immigrant) with HIV, the visitor should ask for the HIV waiver for visitors. This is different than the waiver for noncitizens intending to stay in the United States (immigrants).
- If a DHS agent won't grant the waiver, the visitor should ask for a hearing before an immigration judge.
- If a DHS agent stops and questions a lawful permanent resident, the lawful permanent resident should demand to call his or her lawyer. If the agent arrests him or her, he or she should insist on a hearing with an immigration judge.
- If a DHS officer decides any noncitizen traveler is HIV positive, the noncitizen should talk to a lawyer before answering any of the DHS officer's questions. Otherwise, what the noncitizen says can be used against him or her in an immigration hearing. DHS agents are not required to inform an individual of their rights until after their arrest and placement in formal proceedings. Therefore, there are numerous cases where immigrants are not informed of their rights while in DHS custody.
- Noncitizens stopped by DHS may wish to assert their right to be paroled into the United States for "deferred inspection," since only immigration-approved doctors, not immigration agents, can make a medical determination of inadmissibility. A noncitizen's admission to having HIV is not sufficient proof to keep him or her out. DHS may decide to detain (jail) the noncitizen during this process, however, or release them with an appointment to return.
Source:
HIV/AIDS and Immigrants: A Manual for Service Providers
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