H.R. 3337 (110th): HIV Nondiscrimination in Travel and Immigration Act of 2007

HR 3337 IH

To remove from the Immigration and Nationality Act a provision rendering individuals having HIV inadmissible to the United States, and for other purposes.

August 2, 2007

Ms. LEE (for herself, Mr. GRIJALVA, Mr. WAXMAN, Mrs. CHRISTENSEN, Ms. NORTON, Ms. MCCOLLUM of Minnesota, Mr. MCDERMOTT, Mr. FATTAH, Mr. KUCINICH, Mr. BERMAN, Mr. DAVIS of Illinois, Mr. HASTINGS of Florida, Mr. BLUMENAUER, Ms. SOLIS, and Mr. RUSH) introduced the following bill; which was referred to the Committee on the Judiciary

To remove from the Immigration and Nationality Act a provision rendering individuals having HIV inadmissible to the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `HIV Nondiscrimination in Travel and Immigration Act of 2007'.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) Under current immigration law and policy, infection with the Human Immunodeficiency Virus (HIV) is grounds for barring prospective immigrants, foreign students, refugees, and tourists from entry into the United States. Applicants for temporary admission as nonimmigrants, such as tourists and foreign students, are required to disclose their HIV status when applying for a visa and, if questioned, may be required to undergo an HIV test. Applicants for permanent residence and refugee status must be tested for HIV infection. Waivers may be issued by the Secretary of Homeland Security on a case-by-case basis only to--

(A) HIV-positive individuals applying for permanent admission as immigrants who are the parents, spouse, unmarried son or daughter, or minor adopted child of either a United States citizen or a permanent resident, or are refugees or asylees adjusting to immigrant status and who can establish that--

(i) the danger to the public health of the United States created by the applicant's admission would be minimal;

(ii) the possibility of the spread of the infection created by the applicant's admission would be minimal; and

(iii) there would be no cost incurred by any level of government agency of the United States without the prior consent of that agency;

(B) HIV-positive individuals applying for admission as refugees for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest who also meet the requirements in clauses (i) and (ii) of subparagraph (A); or

(C) HIV-positive individuals applying for short-term nonimmigrant visas, including--

(i) tourists for up to 30 days, who also meet the requirements in clauses (i) through (iii) of subparagraph (A); or

(ii) participants in certain designated events such as conferences or international sports events for up to 10 days.

(2) The HIV travel and immigration ban was originally implemented in 1987 by regulations issued through the Public Health Service of the Department of Health and Human Services and required HIV screening for all persons over 14 years of age applying for immigrant and nonimmigrant visas.

(3) The Immigration Act of 1990 (Public Law 101-649) authorized the Secretary of Health and Human Services to decide which diseases should be considered as grounds for excluding noncitizens from entering the United States based on a determination that such diseases were `communicable diseases of public health significance'.

(4) In 1991, the Department of Health and Human Services conducted a public health analysis and proposed ending the HIV travel and immigration ban by delisting HIV as a communicable disease of public health significance. The proposal was eventually dropped due to opposition from the Congress.

(5) In 1993, as part of the National Institutes of Health Revitalization Act (Public Law 103-43), the Congress revoked the authority of the Secretary of Health and Human Services to make a public health determination regarding HIV status as grounds for inadmissibility for potential foreign students, tourists, refugees, and immigrants to the United States by specifically including `infection with the etiologic agent for acquired immune deficiency syndrome' as a `communicable disease of public health significance' under the statute.

(6) HIV/AIDS is the only condition permanently listed by statute as a communicable disease of public health significance. In contrast, the Secretary of Health and Human Services has the authority to add or remove all other diseases on the communicable disease list.

(7) The United States is one of 13 countries that maintain by law both a travel and immigration ban for persons with HIV, including Armenia, Brunei, China, Iraq, Qatar, South Korea, Libya, Moldova, Oman, the Russian Federation, Saudi Arabia, and Sudan.

(8) The HIV travel and immigration ban impacts thousands of prospective HIV-positive foreign students, tourists, refugees and immigrants who may be denied entry into the United States due solely to their HIV status.

(9) In some cases the HIV travel and immigration ban may discourage foreign students, refugees, and nonpermanent residents who are already in the United States and who may be at risk of infection from seeking testing, treatment or care for HIV/AIDS.

(10) The United Nations, including the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the World Health Organization, oppose any restrictions on travel and immigration for people living with HIV/AIDS. Travel and immigration restrictions based on a public health or economic cost rationale are addressed in the United Nation's `International Guidelines on HIV/AIDS and Human Rights, 2006 Consolidated Version', produced jointly by the Office of the United Nations High Commissioner for Human Rights and UNAIDS, which state the following: `There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status. According to current international health regulations, the only disease which requires a certificate for international travel is yellow fever. Therefore, any restrictions on these rights based on suspected or real HIV status alone, including HIV screening of international travelers, are discriminatory and cannot be justified by public health concerns'.

(11) Such guidelines also state the following: `Where States prohibit people living with HIV from longer term residency due to concerns about economic costs, States should not single out HIV/AIDS, as opposed to comparable conditions, for such treatment and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency. In considering entry applications, humanitarian concerns, such as family reunification and the need for asylum, should outweigh economic considerations.'.

(12) On World AIDS Day, December 1, 2006, the President proposed streamlining the current waiver process for HIV-positive individuals seeking to enter the United States on short-term business or tourist visas for up to 60 days by granting them a `categorical waiver'. If implemented, the President's proposal would only affect the waiver process for short-term visitors, and would not affect HIV-positive individuals seeking permanent residence or nontourist visas.

(13) There is no scientific evidence to support the claim that the HIV travel and immigration ban is an effective way to prevent the spread of HIV or that it provides any economic benefit by reducing costs to the public health care system.

(14) The Secretary of Health and Human Services should have the authority to determine which diseases should be included on the list of communicable diseases of public health significance, and infection with HIV should not be required by law to be included on such a list.

SEC. 3. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(1)(A)(i)) is amended by striking `which shall include infection with the etiologic agent for acquired immune deficiency syndrome,'.

SEC. 4. REVIEW OF TRAVEL AND IMMIGRATION REGULATIONS REGARDING HIV.

(a) Review- Not later than 15 days after the date of the enactment of this Act, the Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, shall convene a panel of public health experts, including non-governmental experts, to review all policies regarding HIV as a `communicable disease of public health significance' under section 212(a)(1)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182 (a)(1)(A)(i)) and which shall include--

(1) the results of the last analysis of the policy conducted by the Public Health Service; and

(2) a 30-day public comment period initiated after sufficient public notice in the Federal Register.

(b) Report- Not later than 90 days after initiating the review required under subsection (a), the Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, shall make a determination regarding the continued listing of HIV as a `communicable disease of public health significance' under section 212(a)(1)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(1)(A)(i)) and shall provide a report to the Congress, and make available to the public, the results of such review, including--

(1) the determination reached by the review process;

(2) the rationale for the determination;

(3) the anticipated public health impact of the determination in relation to other communicable diseases;

(4) the estimated costs of implementing the determination;

(5) the names and affiliations of members of the review panel; and

(6) a brief summary of the public comments.

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