Despite the promise of improvement, the proposed changes to the policy banning HIV-positive individuals from traveling to the United States issued by the Department of Homeland Security on November 6, 2007 brought wide-spread disappointment and outrage.

Since 1993, when Congress enacted the National Immigration and Nationality Act, the United States has prohibited individuals living with HIV/AIDS from entering the country.  This statute, a relic from days laced with ignorance about transmission risks, persisted despite recommendations from the Department of Health and Human Services that only infectious tuberculosis should be considered a “communicable disease of public health significance.”  In fact, the United States is one of only13 nations with similar entry restrictions for individuals with a positive HIV status joining with countries such as Armenia, Brunei, China, Iraq, Libya, Moldova, Oman, Qatar, Russia, Saudi Arabia, South Korea and Sudan.

HIV/AIDS activists and advocates have long awaited reforms and grew hopeful when President Bush announced on World AIDS Day 2006 that he would be altering the regulation in order to “streamline” access to the “categorical waivers” that would ease entry into the United States for some individuals with a positive HIV status.  The actual changes, however, bred disappointment and outrage from public health experts, HIV/AIDS activists, and advocates as well as some U.S. policymakers.

The new regulations create more strict and complicated procedures for entering the United States for those with a positive HIV status. The proposed rule would allow short-term visas to be granted to HIV-positive people by U.S. consulates in their home countries thereby eliminating the involvement of the Department of Homeland Security.  While this new procedure appears to facilitate access into the United States, it does so at a price.  According to the new regulation, visa applicants would be required to abide by a set of conditions, including relinquishing the ability to apply for a longer stay or permanent residency in the United States. These applicants must also provide proof of health insurance coverage valid in the United States that ensures delivery of “any medical care” necessary for the duration of their visit, along with a full supply of any antiretroviral medication.

Adding insult to injury, the proposed modifications were presented with an unusually brief one month comment period in which advocates and public health experts could raise concerns and share feedback on the proposal.¹

The administration has at hand the tools to amend the Immigration and Nationality Act in a way that conforms to medical and human rights standards with the HIV Non-discrimination and Immigration Travel Act of 2007, the house version (H.R. 3337) introduced by Representative Barbara Lee (D-CA) in August 2007 and the senate version (S. 2486) introduced by Senators John Kerry (D-MA) and Gordon Smith (R- OR). This bill does not overturn the policy, but rather places the authority to determine which diseases should be considered communicable diseases back in the hands of the Secretary of Health and Human Services.

On December 6, 2007, Representative Lee led 30 Democrats from the House of Representatives in a letter of dissent to Secretary of Homeland Security Michael Chertoff. The letter expresses their great dissatisfaction with the proposed regulation “which creates the impression that the ill-conceived policy in the underlying statute can somehow be mitigated.  Simply put the HIV/AIDS statutory travel ban is a violation of human rights, has no basis in public health, and should be repealed.”  A letter on the same day from the Global Health Council President and CEO, Dr. Nils Daulaire cited that this regulation is not “based on public health evidence” and can place the visa applicant at risk in his/her home country by requiring disclosure of HIV serostatus.²

“Unfortunately the proposed regulations, fraught with ignorance, come as no surprise from an administration whose overall response to the HIV epidemic in this country can only be characterized as archaic,” said William Smith, vice president for public policy at SIECUS. “These regulations do not serve to ensure public health and are a clear violation of an individual’s human rights.  While the attempt is to be applauded— the administration needs to go back to the drawing board.”

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