Copland and Brenner

Table of Contents

1. HIV/AIDS Travel Ban Eliminated
2. In Brief: Recent Developments

1. HIV/AIDS Travel Ban Eliminated

   On November 2, 2009 the U.S. Department of Health and Human Services (“HHS”), through its Centers for Disease Control and Prevention (“CDC”), published a final rule in the Federal Register, “amending its regulations to remove ‘Human Immunodeficiency Virus (HIV) infection’ from the definition of communicable disease of public health significance and remove references to ‘HIV’ from the scope of examinations for aliens.” The final rule will go into effect on January 4, 2010, and may be viewed in the Federal Register online at http://edocket.access.gpo.gov/2009/E9-26337.htm.

   Of the roughly 16 pages that the Federal Register devotes to the final rule, the tortured history of HIV exclusionary provisions and other analysis take up approximately 15 pages. The actual amendments to HHS regulations at 42 CFR Part 34 comprise about one-half page.

   As explained in the summary to the final rule, “aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA). While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact. As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.”

   Upon announcing the new rule, President Obama stated, “[t]wenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS. Now, we talk about reducing the stigma of this disease – yet we’ve treated a visitor living with it as a threat. We lead the world when it comes to helping stem the AIDS pandemic – yet we are one of only a dozen countries that still bar people from HIV from entering our own country. If we want to be the global leader in combating HIV/AIDS, we need to act like it. And that’s why, on Monday my administration will publish a final rule that eliminates the travel ban effective just after the New Year.”

   Background: In 1952, the McCarran-Walter bill, Public Law No. 82-414, collected, codified and organized a variety of statutes governing U.S. immigration matters into the Immigration and Nationality Act. Senator Patrick McCarran (D-Nevada) stated that he took “no issue with those who would praise the contributions which have been made to our society by people of many races, of varied creeds and colors,” but that he believed the U.S.A. was “the last hope of Western civilization and if this oasis of the world shall be overrun, perverted, contaminated or destroyed, then the last flickering light of humanity will be extinguished.” (Cong. Rec., March 2, 1953, p. 1518).

   President Truman believed the McCarran-Walter act to discriminate against natives of Asian countries and preserve the national origins quota system that largely allocated visas to those from northern and western Europe. In his veto message, President Truman stated, “[t]oday, we are protecting ourselves as we were in 1924, against being flooded by immigrants from Eastern Europe. This is fantastic...We do not need to be protected against immigrants from these countries on the contrary we want to stretch out a helping hand, to save those who have managed to flee into Western Europe, to succor those who are brave enough to escape from barbarism, to welcome and restore them against the day when their countries will, as we hope, be free again...these are only a few examples of the absurdity, the cruelty of carrying over into this year of 1952 the isolationist limitations of our 1924 law. In no other realm of our national life are we so hampered and stultified by the dead hand of the past, as we are in this field of immigration.”

   Congress, however, had sufficient votes in both the Senate and House of Representatives to override President Truman’s veto. As enacted in 1952, Section 212(a) of the Immigration and Nationality Act provided that “[a]liens who are afflicted with tuberculosis in any form, or with leprosy, or any dangerous contagious disease” shall be “ineligible to receive visas and shall be excluded from admission into the United States.” Likewise ineligible were aliens who were “feeble-minded” and those afflicted with epilepsy, among others.

   There have been many amendments to the INA since 1952, with particularly significant changes in 1965, 1986, 1990, and 1996. While some changes seem truly astonishing given historical context, some provisions that changed (and some that went unchanged) seem virtually anachronistic in retrospect.

   The Immigration and Nationality Act of 1965 abolished national origin quotas in place since 1924, and was the first foray of a young Senator Edward Kennedy (D-MA) into the complexities of immigration legislation. That 1965 law was passed by essentially the same Congress that enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Each of these laws reflected a major shift in race-based preferences and protections. However, exclusion based upon “a dangerous contagious disease” remained, and would come to affect those who are HIV positive.

   On July 3, 1981, Lawrence K. Altman, reporter for The New York Times, reported on an outbreak of cases involving pneumocystis, a rare pneumonia, and Kaposi’s Sarcoma, a rare skin cancer, in young gay men. As noted in his article, the CDC was to publish its first report on the outbreak that same day. By 1982, the term “gay-related immune deficiency,” or GRID, was being used to describe the cluster of symptoms. Researchers, realizing that the demographic affected by the symptoms was broader than that connoted by GRID, proposed that “acquired immune deficiency syndrome,” or AIDS, be used to more accurately describe the disease.

   As explained in the background information to the final rule of November 2, 2009, it was in April 1986 that HHS proposed AIDS be deemed a “dangerous contagious disease.” In 1987, HHS published a final rule adopting that proposal, effectively rendering aliens with the disease ineligible for any visa and excludable from admission into the U.S.A. Later that year, Congress added HIV infection to the statutory list of dangerous contagious diseases, such that HHS was mandated to substitute HIV infection for AIDS in its rules – superseding the agency’s regulatory efforts seeking to accomplish the same thing.

   The Immigration Act of 1990 significantly amended the INA, including grounds of exclusion (re-designated as grounds of inadmissibility) at Section 212(a). As to health-related grounds at Section 212(a)(1), language previously referencing a “dangerous contagious disease” was amended to refer to any alien “who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.” Notwithstanding a proposed rule by HHS to remove all diseases (except for infectious tuberculosis) on the list, public comments opposed the proposal and all (including HIV infection) were retained in an interim final rule of May 31, 1991.

   Thereafter, Congress amended Section 212(a)(1) of the INA by Section 2007 of the National Institutes of Health Revitalization Act of 1993, providing that “infection with the etiologic agent for acquired immune deficiency syndrome” is a “communicable disease of public health significance.” It would take 15 years – until summer 2008 - for Congress to amend the INA, striking the above language in Section 305 of the United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008. That bill was signed into law by President George W. Bush, and returned to HHS the authority to determine whether HIV infection should remain on the list of communicable diseases of public health significance. It would take approximately one year before HHS would issue a proposed rule on the matter.

   In the meantime, the ground of inadmissibility for aliens who are HIV positive has continued to apply to those applying for visas at U.S. consulates overseas, applicants for admission at U.S. ports of entry, and those required to have medical examinations in order to determine their admissibility or eligibility for adjustment of status. While a waiver has been available under the INA, it covers only those who are the spouse, unmarried son or daughter, the minor unmarried lawfully adopted child of a U.S. citizen or lawful permanent resident, or a person issued an immigrant visa; as well as those with a son or daughter who is a U.S. citizen, lawful permanent resident, or who is issued an immigrant visa. Certain other waivers have been available to those granted asylum or refugee status and visitors seeking to attend special conferences. For many, however, the required family relationship has been unrecognized, the protected status unattainable, or the process so burdensome and protracted that obtaining a waiver has been tantamount to impossible.

   Pursuant to the 2008 amendment to the INA, HHS published a notice of proposed rule making on July 2, 2009, which would remove (1) HIV infection from the definition of communicable disease of public health significance and (2) references to serologic testing for HIV from the scope of medical examinations for immigration matters. As HHS points out in its discussion of the final rule, more than 20,000 public comments were submitted to the notice of proposed rulemaking, “with the vast majority of commenters in support of the proposed changes, as written.”

2. In Brief: Recent Developments

   Comprehensive Immigration Reform: On October 13, Representative Luis V. Gutierrez (D-IL) spoke before a crowd rallied on the west lawn of the U.S. Capitol, announcing his intention to introduce “a bill that keeps our families together, protects our workers and allows a pathway to legalization for those who have earned it.” Further details are available on the Congressman’s web site, at http://luisgutierrez.house.gov/PRArticle.aspx?NewsID=1399.

   H-1B Update: Unbelievable as it may seem, there are still H-1B visas available for fiscal year 2010. As of October 25, approximately 52,800 H-1B petitions cap-subject petitions, along with about 20,000 petitions qualifying for the advanced degree cap exemption, had been filed with U.S. Citizenship and Immigration Services (“USCIS”). Accordingly, the agency will continue to accept H-1B petitions until statutory limits have been reached. Further details regarding the H-1B “cap count” are available at http://www.uscis.gov/h-1b_count.

   New Form G-28 (Notice of Entry Appearance): On October 1, USCIS issued an Update announcing two revised Forms G-28; one to be used for domestic maters and the other (designated as Form G-28I) for appearances before the U.S. Department of Homeland Security (“DHS”) “in matters outside of the United States.” USCIS advised that the new versions would be required for all filings after October 30, with a “30-day grace period” intended to allow Forms G-28 already in the mail to be considered valid when received. Both new forms bear the legend “(Rev. 04/22/09)” in the lower right hand corner. The G-28, but not the G-28I, carries an “N” after the revision date, indicating that previous versions of the form will not be accepted.

   On October 29, however, USCIS amended its instructions, stating that it “has decided to extend the grace period for accepting previous versions of Form G-28 while the agency further refines the form.” In the meantime, “USCIS will not reject filings accompanied by older versions of the form until further notice.”

   Public Charge Provisions Explained: On October 20, USCIS issued a Public Charge Fact Sheet, intended to address concerns “about whether a non-citizen may face adverse consequences for having received Federal, state, or local public benefits.” The Fact Sheet is available online at www.uscis.gov, and clicking on the link to “News.”