Final Rule Removing HIV Infection from U.S. Immigration Screening:

Technical Questions and Answers

The Department of Health and Human Services (HHS) and Centers for Disease Control and Prevention (CDC) are removing HIV (human immunodeficiency virus) infection from the definition of communicable disease of public health significance. By law, non-U.S. citizens (known as aliens) who are determined to have a communicable disease of public health significance, a mental health disorder with associated harmful behavior, or drug abuse/addiction are inadmissible to the United States. Aliens wishing to live in the United States permanently are also screened for these medical conditions to determine whether a permanent resident visa will be granted. Prior to the effective date of January 4, 2010, HIV was among the diseases that could prevent people who are not U.S. citizens from entering the country.

Technical information about the removal of HIV infection from the definition of communicable disease of public health significance and from the scope of the medical examination for aliens is below:

What is the purpose of the regulations in Title 42 Code of Federal Regulations (CFR), Part 34?

Under section 212(a)(1) of the Immigration and Nationality Act, any alien who is determined to have a communicable disease of public health significance is inadmissible to the United States and ineligible for a visa. The 42 CFR Part 34 regulations defines the term communicable disease of public health significance and describes the medical examination that aliens must complete in order to determine whether they have one of these diseases.

CDC is removing all references to HIV infection in these regulations. Thus, aliens will not be tested for HIV and HIV-infected aliens will no longer be inadmissible to the United States.

How is the term, “alien” defined?

An alien is any person who is not a citizen of the United States. Some types of aliens that are referenced in the Immigration and Nationality Act include immigrant, refugee, asylee or parolee, and are defined in general terms below:

An immigrant is a person from another country who is admitted to the United States as a lawful permanent resident. This includes a person in the United States who adjusts visa status to be a lawful permanent resident.

A refugee is any person who is outside his or her country of nationality and who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution based on race, religion, nationality, particular social group, or political opinion.

An asylee is considered the same as a refugee, except that an asylee applies for asylum status either upon arrival at a U.S. port of entry or after entry into the United States.

A parolee is a person from another country who appears to the inspecting officer to be inadmissible, but who is allowed into the United States for urgent humanitarian reasons or when his or her entry is determined to be for significant public benefit.

A nonimmigrant is a person from another country coming to the United States as a temporary visitor either for business or pleasure.

What is a communicable disease of public health significance in Part 34? (Section 34.2 of 42 CFR Part 34)

The health-related grounds for which aliens are inadmissible and ineligible for visas or admission to the United States can be found in Section 212(a) (1) of the Immigration and Nationality Act (INA) [8 United States Code (USC) § 1182] . This includes any alien who is determined (based on regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.

Part 34.2 provides a list that defines a communicable disease of public health significance. This list includes specific diseases and categories of diseases for which aliens are screened during the required medical examination to determine eligibility for admission into the United States. Aliens may be excluded from entering the United States if one of these diseases is found during the required medical examination.

Prior to the effective date of January 4, 2010, what are the rules for aliens who have HIV? How has this rule changed the immigration process for aliens?

Under previous regulations and policy, HIV-infected aliens were not allowed to be admitted to the United States unless granted a waiver by the Department of Homeland Security (DHS). DHS could issue a waiver if the immigrant or refugee proves that the danger to U.S. public health by his/her admission to U.S. is minimal, that the possibility of spread of the disease by his/her admission to the U.S. is minimal, and that there won’t be costs incurred by the government due to the condition (unless prior consent is given by the government). This waiver process is still in place for conditions that are considered a communicable disease of public health significance.

Under the final rule for the medical examination of aliens, HIV is no longer grounds for inadmissibility to the United States effective January 4, 2010. Thus, HIV screening will not be included in the medical examination for aliens and positive HIV status will not prevent entry to the United States.

How are immigration benefit requests currently pending with U.S. Citizenship and Immigration Services (USCIS)/DHS affected by the final rule that removes HIV as a communicable disease of public health significance?

Until the final rule is effective on January 4, 2010, HIV continues to be a consideration in any benefits request currently pending with USCIS/DHS. The memorandum issued on September 15, 2009 entitled “Public Law 110-293, 42 CFR 34.2(b), and Inadmissibility due to Human Immunodeficiency Virus (HIV) Infection” continues to be applicable to pending benefits requests until new guidance is posted on the USCIS website.

The memorandum is available on www.USCIS.gov or by going to the following link: Memorandum: Public Law and Inadmissibility due to HIV Infection.

For questions about pending benefit requests or waiver applications, individuals should contact the National Customer Service Center (NCSC) at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired).

How are medical examinations that take place before January 4, 2010 affected by the final rule that removes HIV infection as a communicable disease of public health significance?

HIV infection continues to be a communicable disease of public health significance and HIV testing remains part of any medical examination conducted before January 4, 2010.

Why must 60 days elapse between publishing the final rule and implementing the changes?

The U.S. Office of Management and Budget (OMB) has determined that any rule that will have a significant national economic impact must undergo a 60-day waiting period after the final rule is posted in the Federal Register. An economic analysis has demonstrated that removing HIV as a communicable disease of public health significance will have a significant national economic impact. Thus, this rule meets the OMB criteria for the 60-day waiting period before implementation. The final rule, which removes HIV as a communicable disease of public health significance, will go into effect on January 4, 2010.

What is the scope of medical examinations? (Section 34.3 of 42 CFR Part 34)

One of the provisions in CDC’s regulations is entitled, “Scope of examinations.” This provision provides specific screening and testing requirements only for the diseases that meet the current definition of a communicable disease of public health significance. It does not include testing requirements for other health-related conditions. CDC/HHS is removing testing requirements related to detecting HIV infection.

Why is CDC removing HIV infection from both the definition of communicable disease of public health significance and the scope of the screening examination?

The July 2008 legislation reauthorizing the President’s Emergency Plan for AIDS Relief (PEPFAR) removed language from the Immigration and Nationality Act which had previously mandated that HIV be a communicable disease of public health significance.  This legislative change allowed HHS/CDC to reassess whether HIV infection should be retained or removed from 42 CFR part 34 regulations.

HIV infection is being removed from the definition of a communicable disease of public health significance because it is no longer applicable based on current medical knowledge and practice, scientific knowledge, and public health practice. HIV infection is not spread by casual contact, through the air, or from food or water.

HIV infection is also being removed from the scope of the alien medical examinations. The scope of the medical screening is determined based on the list of conditions that are a communicable disease of public health significance. This final rule removes HIV infection from both the definition of a communicable disease of public health significance and from the scope of the medical examinations, eliminating all references to HIV in Part 34.

Why is HHS/CDC removing only HIV infection when other diseases (e.g., other sexually transmitted infections) still listed in the definition of a communicable disease of public health significance are also transmitted in the same way as HIV?

July 2008 legislation reauthorizing the President’s Emergency Plan for AIDS Relief (PEPFAR) removed language from the Immigration and Nationality Act which had mandated that HIV be on the list of diseases that can bar entry to the U.S. This legislative change allowed HHS/CDC to reassess whether HIV infection should be kept or removed from 42 CFR Part 34 regulations.

CDC is reviewing each communicable disease of public health significance to determine whether it should retain this classification. If CDC seeks to remove additional diseases from this list in the future, it will do so through the federal rulemaking process.

Is there a significant health risk from casual contact with HIV-infected aliens?

An arriving alien with HIV infection does not pose a public health risk to the general population through casual contact. Further, interacting with an HIV-infected person in a common public setting will not place individuals at risk for the disease. HIV is a fragile virus that cannot live for very long outside the body. The virus is not transmitted by mosquitoes or through day-to-day activities such as shaking hands, hugging, or casual kissing. HIV cannot be acquired from a toilet seat, drinking fountain, doorknob, eating utensils, drinking glasses, food, or pets.

How is HIV infection transmitted?

HIV infection is transmitted among adults in the United States almost exclusively by unprotected sexual intercourse with an HIV-infected person or by sharing needles or syringes contaminated with HIV. Mother-to-child transmission of HIV can also occur from an infected mother before or during birth, or through breast feeding.

HIV can also be transmitted through transfusion of blood or blood products infected with HIV. However, since 1985 all donated blood in the United States has been screened for HIV. The U.S. blood supply is considered among the safest in the world. Therefore, the risk for HIV infection through transfusion is extremely low.

For more information on the prevention of HIV, please go to http://www.cdc.gov/hiv/topics/basic/index.htm.

Where can more information be obtained about this final rule?

For more information about the revised provisions of this rule, the technical instructions for the medical screening examination, or to view the rule in its entirety, visit the Final Rule Removing HIV Infection from U.S. Immigration Screening page.