Visitor Visas for HIV-Positive Individuals under Recent Law
Posted Oct 17, 2008
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The U.S. Department of Homeland Security (DHS) recently issued a press release announcing the publication of a final rule intended to streamline issuance of short-term nonimmigrant visas to individuals infected with the Human Immunodeficiency Virus (HIV). This new regulation, for the first time, will make it possible for U.S. consular officers to grant the short-term nonimmigrant visas to HIV-positive applicants without a waiver.
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HIV-Positive Applicants Previously Inadmissible
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As regular MurthyDotCom and MurthyBulletin readers will recall from our August 8, 2008 article, Travel and Immigration to U.S. Possible for Some Applicants with HIV, President Bush recently signed a law that revoked the 1987 ban on admission to HIV-positive persons. Since 1987, any foreign national infected with HIV was automatically inadmissible to the U.S. and could not enter without first obtaining a waiver. In some situations, the U.S. Department of State would recommend, subject to DHS approval, waivers for groups of individuals traveling for United Nations events or other international events, such as AIDs conferences, taking place in the United States.
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Some HIV-Positive Individuals will Obtain Visas More Easily
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When the U.S. Global Leadership against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (S. 2731) was signed into law by President George W. Bush on July 30, 2008, HIV was no longer required to be on the list of diseases that make an individual inadmissible to the U.S. The regulations did not change automatically, however, and this matter is in process as of this writing. Under the new DHS regulation, U.S. consular officers will be able to issue B-1/B-2 visitor visas, good for visits of up to 30 days, to HIV-positive individuals who meet certain criteria described in a DHS Fact Sheet released on September 29, 2008.
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Waivers Still Required for Most Applicants
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If a foreign national does not fit within the limited criteria, either because s/he is seeking to enter the U.S. as a visitor for more than 30 days, or is seeking to enter in another category, then following the pre-existing process and requesting an individual waiver is required. The procedure for the waiver depends upon whether the individual is seeking to enter the U.S. temporarily or permanently. In other words, one must meet the legal and other criteria for a nonimmigrant visa waiver or an immigrant visa waiver to enter the U.S. temporarily or permanently, as the case may be. Long-time readers of MurthyDotCom and the MurthyBulletin may recall a discussion of the temporary waivers from our November 16, 2007 NewsBrief entitled, DHS Proposal to Permit B-1/B-2 Entry for HIV-Infected Visa Applicants.
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Conclusion
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It is important to remember that these new HIV provisions do not change the fact that all applicants must otherwise meet all the criteria established for a B-1/B-2 visa. It is also important to remember that this law for HIV infected persons to enter the U.S. temporarily is limited to B-1/B-2 visitors seeking entry to the U.S. for a period of 30 days or less. We at the Murthy Law Firm appreciate this DHS guidance on the new process for the B-1/B-2 visa issuance to applicants with HIV. We will monitor this process and provide updates to our readers as it becomes available.