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HIV Immigration Ban : Update

On July 30, 2008, President Bush signed into law the U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act (H.R.5501). While this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive.

The bill includes a provision that repeals the HIV travel/immigration ban by amending the current health-related ground of inadmissibility in the Immigration and Nationality Act to exclude any reference to HIV. This provision returns the authority to the Department of Health and Human Services to determine whether individuals with HIV should be permitted to travel to the U.S.

While this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive. INA section 212(a)(1)(A)(i) renders inadmissible any individual “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.” Until HIV is taken off the list by the Department of Health and Human Services, HIV continues to be listed as a communicable disease of public health significance under 42 C.F.R. Section 34.2(b)(4) and HIV positive foreign nationals continue to remain inadmissible to the U.S. This legislation has not changed the requirements for the waiver of inadmissibility.