United States Overturns Entry Ban on Immigrants with HIV

January 16, 2010

Samantha Howell

This past October, President Barack Obama announced that the twenty-two year travel and immigration ban on persons with HIV/AIDS would be overturned, effective this month.  The ban was enacted in 1987 by the Department of Health and Human Services and resulted in the exclusion of thousands of students, tourists, and refugees.1

Section 212(a)(1) of the Immigration and Nationality Act (INA) provides that “any alien who is determined to have a communicable disease of public health significant is inadmissible to the United States.” 2  Aliens located outside the United States with a communicable health disease of public significance (emphasis added) are ineligible to receive a visa and ineligible for admission into the United States.  In 1987, the acquired immune deficiency syndrome (AIDS) was added by the Department of Health and Human Services (HHS) to the list of communicable diseases as a ground for inadmissibility. 

The Centers for Disease Control and Prevention (CDC) and HHS issued a proposed rule in 1991, recommending the removal of all diseases – except infectious tuberculosis – from the list of communicable diseases that would result in exclusion from the United States.  This proposal was not acted on until 2008, however, when Congress passed the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, which provided the Secretary of HHS discretion 3 in determining whether HIV should be included in the list of communicable disease of public health significance. 4  The HHS/CDC subsequently issued a proposed rule on July 2, 2009, that would remove HIV infection from the definition of communicable disease of public health significance.  In so doing, the agencies acknowledged that, while HIV infection was a serious health condition, it did not represent a significant threat for “introduction, transmission and spread . . . through casual contact.”

As the scientific understanding of the HIV virus has grown, the rationale for its inclusion in the list of diseases that serve as a ground for exclusion, has become progressively weaker.  There are only limited ways for the virus to be transmitted, including: unprotected sexual intercourse with an HIV-infected person, sharing needles or syringes contaminated with HIV, mother-to-child transmission of HIV (which can occur before or during childbirth or through breastfeeding), and through blood transfusions.  Intense screening/testing procedures in the United States have made transmission through blood transfusions extremely rare. Research has also revealed that the human immunodeficiency virus is a very weak virus that cannot survive for very long outside of it host.5

The lifting of the travel and immigration ban will open the door for thousands of people who would previously had been ineligible for admission solely due to their status of being HIV-infected.  In addition to the practical effect of lifting the ban, the move is also a huge step in addressing the stigma attached to HIV/AIDS and discrimination faced by those infected with HIV. 

Footnotes

1  Darlene Superville, “HIV Travel Ban Lifted By President Obama,” HuffPost Social News, 10/30/09, http://www.huffingtonpost.com/2009/10/30/hiv-travel-ban-lifted-by_n_340109.html, last accessed 12/4/09. 

2  74 Fed Reg. 31798

3  42 CFR 34.2(b).

4  Public Law No: 110-293.

5  Center for Disease Control and Prevention, HIV and Its Transmission Factsheets, Mar 8, 2007