Elimination of the Statutory HIV Ban is a Huge Step in a Longer Journey

by Victoria Neilson
Legal Director
Immigration Equality

Under the current policies of the Department of Health and Human Services, foreign nationals with HIV will continue to be excluded from the United States.

by Victoria Neilson

Legal Director, Immigration Equality

On July 30, 2008, President Bush signed a historic piece of legislation, the President’s Emergency Plan for AIDS Relief, which will provide billions of dollars in AIDS treatment and prevention money around the world. The legislation also lifts the statutory ban on immigration for HIV-positive travelers and applicants for permanent residence. 

 Since 1993, HIV has been the only medical condition singled out in the Immigration and Nationality Act as a ground of “inadmissibility.” Whereas the Department of Health and Human Services (HHS) is authorized to make the determination of what illnesses constitute a “communicable disease of public health significance” for every other disease, in 1993, amidst a climate of HIV hysteria and overt homophobia, Congress stripped this authority from HHS and codified the HIV ban. 
The removal of the HIV ban from the immigration statute last week is a huge step forward in the fight against discrimination and stigma for non-citizens living with HIV. However, HIV currently remains on the HHS list of “communicable diseases of public health significance.” Thus, in the short term, foreign nationals with HIV will continue to be excluded from the United States.
Immigration Equality is now working with a broad-based coalition to advocate with HHS to remove HIV from its list. In fact, HHS already proposed removing HIV, and all other illnesses except active tuberculosis, in 1991 and 1993, but Congress’s action foreclosed HHS’s ability to make a change. 
We are hopeful that HHS will act swiftly to end this sad chapter of discrimination against foreign nationals living with HIV. Meanwhile, individuals affected directly by the HIV ban should consult with qualified immigration attorneys about the effect of this recent change on their legal situation.
For more information, visit www.immigrationequality.org.