June 2008 High-level meeting in New York

[Guest guest]

The June 2008 High-level meeting in New York has been classified a " designated

event " for which an HIV visa waiver is available.

The US restricts entry for People Living with HIV (PLHIV), and applying for a

waiver is not without issues and problems.

Gay Men's Health Crisis (GMHC), has prepared an advisory note

<http://www.icaso.org/resources/2008_HighLevelMeeting_on_AIDS_HIV_Waiver_7.pdf>

for PLHIV wanting to travel to the US to attend the meeting, to help decide what

to do and how to do it.

TO ALL HIV POSITIVE VISITORS COMING TO THE UNITED STATES TO ATTEND THE 2008 HIGH

LEVEL MEETING ON AIDS

The following advisory was prepared by Vishal Trivedi, Immigration Project

Manager at Gay Men’s Health Crisis (GMHC) – Legal Services Department, New York,

NY.

The objective of this posting is to call your attention to the complexities of

United States

Immigration Law and Policy as it relates to HIV infection.

This posting is solely for informational purposes and should not be considered

legal advice. We advise you to seek legal counsel as you consider traveling to

the United States.

I. United States Immigration Policy on HIV Positive Individuals

• Section 212(a)(1)(A)(i) of the Immigration and Nationality Act provides that

applicants for a visa or for admission to the United States are inadmissible if

they have “a communicable disease of public health significance.”

• HIV infection is classified as “a communicable disease of public health

significance.”

• The law provides waivers of inadmissibility for an HIV positive person in

certain situations.

• The waivers are discretionary and granted on a case by case basis.

• The 2008 High Level Meeting on AIDS as well as the additional preparatory

meetings (to be held May 4 to May 10, 2008) has been classified a “designated

event” for which an HIV waiver will be available (“High Level Meeting HIV

waiver”).

• The actual “High Level Meeting HIV waiver” policy text as issued by the U.S.

Department of Homeland Security and the U.S. Department of State can be obtained

by e-mailing Vishal Trivedi of GMHC at vishalt@....

HIV positive visitors attending the 2008 High Level Meeting on AIDS should be

aware of the following:

If you enter the United States pursuant to a “High Level Meeting HIV waiver,”

your HIV status will become a matter of United States Government information.

II. If you apply for the High Level Meeting HIV Waiver

• If the “High Level Meeting HIV Waiver” is granted or denied at the time of

your B-1/B-2 visa application, you should bear in mind that your name may be

entered and flagged in the Consular Lookout and Support System (CLASS) and/or

the Treasury Enforcement Communications System (TECS) as being HIV positive.

• CLASS is a database system used by the U.S. Department of State to perform a

“name

check” when applying for a visa at a U.S. embassy or consulate outside the

United States.

• The TECS is a computer-based index that links telecommunication terminals

located in

law enforcement facilities of the Department of the Treasury throughout the

United

States.

• TECS users include the U.S. Customs and Border Protection, the U.S.

Citizenship and

Immigration Services, the U.S. Department of State, and the U.S. Department of

Justice.

• If your name is entered and flagged in CLASS and/or TECS as being HIV positive

you

may be barred from future entry into the United States.

• You may apply for an HIV waiver for another future visit/event. However,

obtaining the waiver may be difficult.

III. If you do not apply for the High Level Meeting HIV Waiver

If you are HIV positive but do not apply for an “High Level Meeting HIV Waiver”

and you obtain a B-1/B-2 Visa (or enter on a Visa Waiver Program), the following

may occur when entering the United States:

• If the United States Authorities at your particular port-of-entry are unaware

of your HIV

positive health status, they may admit you as a temporary visitor in the United

States, in

which case you may be allowed to remain for six (6) months or less.

• For visitors entering on the Visa Waiver Program: you will receive a form

I-94W prior to your arrival in the United States. The form will ask, “Have you

ever been afflicted with a communicable disease of public health significance.”

Remember: (HIV is considered a

disease of public health significance by the United States Citizenship and

Immigration

Service).

If the United States Authorities at the port-of-entry suspect that you are HIV

Positive (or if you answer “yes” to the question “Have you ever been afflicted

with a communicable disease of public health significance” on form I-94W) you

may be:

• Placed in Secondary Inspection1 and questioned by an official of the U.S.

Department of Homeland Security; and/or

• Placed in Deferred Inspection.2; or

• Asked to withdraw your application for admission into the U.S.3; or

• Placed in Expedited Removal Process4; or

• Placed in an U.S. Department of Homeland Security Detention Center and

detained until your case is heard by an Immigration Judge.

Many people who are put into Secondary Inspection refuse to make or sign an

admission that they are HIV positive. At this point it is advisable to ask for

an attorney. If you are placed into Secondary Inspection, a Detention Center, or

Deferred Inspection, you have the right to contact an attorney for legal

assistance.

Not providing information about your HIV Status to the U.S. Department of

Homeland Security can be considered misrepresentation or visa fraud.

IV. HIV Positive Travelers Carrying Medication into the United States

• The written policy of the Immigration Service with respect to any visitor

entering with a B- 1/B-2 visa is as follows5:

1. A visitor will not be asked during “primary inspection” if they are

inadmissible under

any medical inadmissibility grounds (including HIV/AIDS).

2. A visitor will not be detained for medical exclusion grounds merely on the

basis of

responses to questions asked by an Immigration Inspector pertaining to the

purpose of

1 Secondary Inspection is when you are pulled from the “Primary Inspection” line

where you are initially being

processed for admission into the United States for further questioning.

2 Deferred Inspection is when you are “physically” let into the United States,

but have not been “officially admitted”

for Immigration Purposes. You are told to report back to a U.S. Customs and

Border Protection Office for an

interview with an Officer to determine your “admission eligibility”.

3 If you withdraw your application for admission into the U.S., you will be

returned to your home country immediately.

4 Expedited Removals were authorized by the U.S. Congress in 1996 which allows

Immigration Inspectors to issue

“Expedited Removal Orders” against people seeking admission into the U.S. who

are deemed to be in blatant

violation of the law. An “Expedited Removal Order” will bar you from reentering

the U.S. for a period of five years.

5 See Immigration Commissioners memorandum issued on September 18, 1990

“Inspections Regarding Medical Exclusion Grounds”.

the visitor’s trip to the United States, e.g., if you state that you are coming

to the

United States to attend an HIV/AIDS conference.

3. A visitor cannot be detained on the basis of any literature relating to the

medical

inadmissibility grounds that may be in the visitor’s possession, e.g. carrying

prescriptions for medication, prevention material, etc.

Please note: Despite this policy, Immigration Inspectors routinely detain HIV

positive visitors to the United States upon finding clearly labeled prescription

bottles containing HIV medication.

V. Grounds of Inadmissibility for Visa Applicants, Including HIV

Please note: The following questions are all listed on the Visa Application Form

DS-156. If you answer “Yes” to any of these questions, you may be denied a Visa

to enter the United States. You may be inadmissible to the United States if you:

1. Have ever been afflicted with a communicable disease of public health

significance, a

dangerous physical or mental disorder, or been a drug abuser or addict.

2. Have ever been arrested or convicted for any offense or crime, even if you

were later

pardoned, received amnesty or other similar relief.

3. Have ever unlawfully distributed or sold a controlled substance (drug), or

been a prostitute or procurer for prostitutes.

4. Are seeking to enter the United States to engage in export control

violations, subversive or terrorist activities, or any other unlawful purpose;

are a member or representative of a terrorist organization as currently

designated by the United States Secretary of State; have participated in

persecutions directed by the Nazi government of Germany; or have participated in

genocide.

5. Have ever been refused admission to the United States, are the subject of a

deportation /removal hearing, or sought to obtain for yourself or others a visa

or any other United States immigration benefit by fraud or willful

misrepresentation; have attended a United States public elementary school on

student (F) status or public secondary school without

reimbursing the school (after November 30, 1967).

6. Have ever departed or remained outside the United States to avoid military

service.

7. Have ever violated the terms of a United States visa or been unlawfully

present in or

deported/removed from the United States.

8. Have ever withheld custody of a United States citizen child outside the

United States from a person granted legal custody by a United States Court,

voted in the United States in violation of any law or regulation, or renounced

United States citizenship for the purpose of avoiding taxation.

International Council of AIDS Service Organizations (ICASO)

65 Wellesley St. E., Suite 403

Toronto, ON

Canada M4Y 1G7

Tel: +1 416 921 0018

Fax: +1 416 921 9979

Email: icaso@...

web sites: www.icaso.org <http://www.icaso.org/>

www.aids2008community.org