Issuance of a Visa and Authorization for Temporary Admission into the United States for Certain Nonimmigrant Aliens Infected with HIV; Final Rule, 73 F.R. 58023

Statutes, Regulations, and Agency Guidelines

In 2008, the U.S. Department of Homeland Security (DHS) amended its regulations under 8 C.F.R. § 212.4 regarding the issuance of temporary entry visas for certain people with HIV. Under 8 U.S.C. § 1182 and 42 C.F.R. § 34.2, people with HIV are considered inadmissible to the United States. However, DHS has the discretion to grant waivers for temporary admission (up to 30 days) to those who are otherwise inadmissible, including to those people seeking entry who are HIV-positive. This rule attempts to simplify and streamline the waiver process for people with HIV by allowing DHS to issue temporary visas without going through the previously required case-by-case evaluation, which was very time consuming.

Although this rule made it easier for some HIV-positive people to enter the United States for a temporary visit, it did nothing to change the over-arching prohibition on entry for people with HIV. However, in 2009, the U.S. Department of Health and Human Services issued regulations eliminating HIV from the list of conditions that automatically disqualify people from admission to the United States. The HIV ban is no longer in effect as of January 4, 2010. For additional information, please see CHLP's Know Your Rights fact sheet on the HIV ban's repeal and immigration.