Praise for Bush HIV Waiver Is Premature

NEW YORK --President Bush recently announced that he was directing the Secretary of Homeland Security and the Secretary of State to create a categorical waiver to the ban on HIV-positive individuals' entry to the United States. Much of the HIV/AIDS community greeted this announcement with praise, because of the president's recognition that the travel ban places hardships on people living with HIV/AIDS and their families. The praise is premature.

Even at face value, the proposal looks quite similar to the current system, which is broken and discriminatory. If this proposal is genuine and leads to real reform it is indeed welcome news. But the devil, as they say, is always in the details.

Here's how the law stands: Section 212(a)(1)(A)(i) of the INA states that any foreign national with a "communicable disease of public health significance" is "inadmissible." This means that people living with HIV, no matter how healthy they are -- presumably including those who came to the White House to share with the American public their stories on World AIDS Day -- are to be denied green cards, unless they qualify for a limited or categorical waiver.

In the early 1990s when HIV/AIDS was less understood, public fear fueled policy. The Public Health Service (PHS) a division of the Department of Health and Human Services sought to decide whether HIV should be placed on the list of excludable diseases -- and concluded that it should not. Public health officials testified before Congress that the U.S. is "virtually the only major country to try to bar HIV-infected travelers," and since "sexually transmitted diseases are not spread by casual contact" or "through the air," public education would prevent transmission better than closed
borders.

Despite PHS' expert testimony, Congress opposed the recommendation and codified HIV/AIDS as an excludable illness, and in an unprecedented move, wrote the HIV exclusion directly into the Immigration and Nationality Act (INA). Other diseases such as active tuberculosis and leprosy are also
inadmissible, but as the PHS recognizes, these are spread through open air, or casual contact, unlike HIV.

With HIV written directly into the INA, it will take real leadership and an act of Congress to overturn or to amend this policy. Without such action, the HIV community must rely on waivers to enter or remain in the United States. But entry waivers are very difficult to obtain, and if obtained bar future travel to the U.S. Residency waivers are even more difficult to obtain as hardship to a parent, spouse or child must be shown, so must proof of insurance coverage and knowledge of how HIV is transmitted. A new approach is needed.

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