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The ban was originally enacted in 1987, and explicitly restated in 1993, despite efforts in the public health community to remove the ban when Congress reformed U.S. immigration law in the early 1990s.
The travel and immigration ban prohibits HIV positive foreign nationals, students, and tourists from entering the U.S. unless they obtain a special waiver that only allows for short term travel. Current policy also prevents the vast majority of individuals with HIV from obtaining legal permanent residency.
While immigration law currently excludes immigrants with any "communicable disease of public health significance" from entering the U.S., only HIV is explicitly named in the statute. For all other illnesses, the Secretary of Health and Human Services retains the ability, with the medical expertise of his department, to determine which illnesses truly pose a risk to public health.
The HIV Non-Discrimination in Travel and Immigration Act was attached to the President's Emergency Plan for AIDS Relief, known as PEPFAR by its Senate sponsors, Sens. John Kerry (D-Mass.) and Gordon Smith (R-Oregon).
A House version is sponsored by Rep. Barbara Lee (D).
Immigration Equality said it is confident the legislation will pass the full Senate when it comes to a vote.
"The United States has enforced this antiquated policy for too long with no public health rationale for discriminating against HIV-positive people in such a severe manner." said Victoria Neilson, Immigration Equality's Legal Director.
"We are confident that this vote by the full Senate will be successful and will move the United States one step closer to lifting the HIV immigration ban."
The administration has acknowledged there are problems with the current system but White House proposals to amend the law still present roadblocks.
There are 12 proposed requirements of visitors and immigrants to this country who have HIV. They would require disclosure of HIV status to consular officials in the individual’s home country; certification that the individual has in their possession all medication necessary for the duration of their stay in the U.S.; certification that no symptoms are being exhibited; and a commitment to avoid all high risk behavior while in the U.S.
In addition it is left to the discretion of the consular officers who often do not have the medical knowledge to make these decisions. No guidelines are given on how to make these determinations and there is no appeal process. If an HIV positive individual is given asylum in the United States, that person is not allowed to obtain a green card or become a U.S. citizen – even if their asylum was given because of their HIV status.
The United States is one of only 13 countries that have an HIV travel ban.
PEPFAR, the bill the measure is attached to provides for spending of $50 billion over the next five years to combat the health crises posed by AIDS and other diseases in Africa and elsewhere in the world.
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