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Obama ends 22-yr-old travel ban against people with HIV/AIDS, ushering in big change

Discussion in 'International Forum' started by Shadow, Dec 17, 2009.

  1. Shadow

    Shadow JF-Expert Member

    Dec 17, 2009
    Joined: May 19, 2008
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    Kuanzia January 04, 2010. Hii itawapatia nafuu hasa wanafamilia waliotenganishwa kwa sababu ya HIV /AIDS. At last a sign of relief to HIV Victims. No more discrimination in entering U.S based on this vice[HIV]

    Obama ends 22-year-old travel ban against people with HIV/AIDS, ushering in big changes to immigration law

    By AIDS Network Legal Services Attorneys
    Dec. 2, 2009 – World AIDS Day, commemorated every Dec. 1, was a more inclusive occasion in the United States following President Barack Obama’s decision to drop the 22-year-old travel and immigration ban against people with HIV/AIDS.
    The nearly quarter-century ban has excluded thousands of HIV-positive people, including students and tourists, from the country. It has also made it much more difficult for immigrants already residing or seeking to reside in the United States to adjust their status. Yet, this ban has lacked a public health justification, according to the United Nations Programme on HIV/AIDS (UNAIDS) and the International Organization for Migration (IOM).
    When the ban ceases on Jan. 4, the United States’ regulations will be in line with current scientific and international standards of public health. The final regulations, published on Nov. 2, by the Department of Health and Human Services (HHS), both remove HIV from the list of communicable diseases of public health significance and put an end to the requirement that lawful permanent resident applicants must have an HIV test as part of their routine medical exam.These changes will decrease stigmatization of HIV-infected people who, for over two decades, have been denied entry into the U.S. based only on a treatable medical condition.
    Current law
    Federal regulations currently classify Human Immunodeficiency Virus (HIV) as a “communicable disease of public health significance.” The law states any alien with a communicable disease of public health significanceis currently ineligible to receive a visa for admission into the United States, absent a waiver. Some primary factors considered in the waiver process include whether the applicant is a threat to public health, if the applicant will be a burden to government benefit programs, and if the applicant will have access to medical treatment. But even those who might satisfy the waiver requirements are not guaranteed admission to the U.S. because immigration officials have significant discretion when determining whether the applicant meets the waiver criteria. The U.S. requires HIV tests of all immigrants applying for admission into the U.S. as legal permanent residents, as well as of those already in the U.S. who seek adjustment to permanent resident status.
    HIV-positive individuals who do not receive a waiver from the U.S. Citizenship and Immigration Services (USCIS) within the U.S. Department of Homeland Security (DHS) are refused lawful permanent resident status in the U.S. Similarly, refugees who are HIV-infected must have a waiver from the DHS before entering the country. Refugees infected with HIV who are already in the U.S. and apply for adjustment to permanent resident status must be re-examined and granted another waiver from DHS at that time.
    Although HIV testing is not routinely required for visitors to enter the U.S., visitors who are infected with HIV must currently request waivers to obtain entrance. Reports suggest that the process for obtaining visitor waivers is so cumbersome that many HIV- positive individuals do not even attempt to get such a waiver.
    Effect of the new rule
    The World Health Organization estimates that more than 33 million people globally live with HIV/AIDS. More than 1.1 million of those reportedly live in the U.S., and more than 56,000 new infections are reported in the U.S. every year. Since 1983, Wisconsin alone has reported 10,316 people living with HIV/AIDS, with 391 new cases in 2008. The 2007 Immigration Statistics indicate that 1,052,415 people became permanent residents in the United States in 2007. Multiplying this number by a prevalence estimate of 4.06 HIV-infected immigrants per 1,000 immigrants yields an estimated 4,275 HIV-infected immigrants who would no longer be barred from entering the United States each year.
    After Jan. 4, HIV will no longer disqualify someone from being granted permanent residency, meaning that the waiver process will no longer be necessary. The HIV-positive individual will, of course, still have to qualify as a lawful permanent resident, which is commonly known as “green card” status. The law provides such status to an HIV-positive person with a petition based on a qualifying family relationship, an existing or a future employment relationship, a diversity lottery (“green card lottery”), which is a program for people from countries who have had historically few immigrants to the U.S., or an application claiming refugee status or asylum.
    Issues for attorneys representing HIV-positive applicants
    Attorneys representing HIV-positive applicants must be prepared to address the issues raised by this ban, such as whether cases that have been denied due to HIV-infection can now be reopened. Such inquiries turn on the specifics of each case. In general, attorneys may give good news to clients who have pending waivers and who have already paid the waiver fee. It is now possible for their case to be decided immediately because there is no longer any reason for a waiver. The bad news is that the filing fee for the waiver they no longer need is not refundable.
    Between now and Jan. 4, attorneys need to pay particular attention to whether their client is legally physically present in the U.S. when he or she seeks permanent residency or whether their client is applying from outside the U.S. People already in the U.S. undergo an adjustment of status, and have their cases handled by USCIS.
    In September, USCIS issued a memorandum instructing its officers to “hold in abeyance any waiver application and associated benefit request (such as adjustment of status or refugee), which would be denied under current law, if the only ground for inadmissibility is that the applicant has been diagnosed with HIV infection.” Thus, cases involving HIV-positive individuals already in the U.S. will be held until after the final regulations go into effect if the application is approvable but for the HIV positive status of the applicant. No one who applies now will be denied in the meantime on the basis of HIV-infection. Individuals who are eligible for waivers can continue to file them, although as the implementation date of the new regulations draws nearer, the reason to do so lessens, especially given the $545 fee associated with the waiver application.
    Individuals going through consular processing, the term for people seeking permanent resident status from outside the U.S., are not as fortunate. Their applications are initially processed by consular officers at U.S. embassies abroad. Consular officers at U.S. embassies are part of the U.S. State Department, which has not issued any guidelines for holding applications in abeyance until the new regulations are effective. It is currently unclear whether consulates are holding applications for HIV-positive individuals or denying them. Thus, counsel should caution clients falling into this category not to apply until after Jan.4, unless they must do so to avoid missing a filing deadline.
    Although the benefits from the law’s passage are hard to quantify, the rule will bring family members together who had been barred from entry, thus strengthening families.
    Also, HIV-infected immigrants with skills in high demand will be permitted to enter the U.S. to seek employment and contribute as productive members of U.S. society. Admittance may also afford greater opportunity, better health care, and education and training programs than those available in the immigrant’s home country. Finally, the end of the ban will add consistency and credibility to the U.S.’s efforts to stop the HIV/AIDS pandemic at home and abroad.
    As President Obama stated when he signed the new law, ““If we want to be a global leader in combating HIV/AIDS, we need to act like it.”