Technical Questions and Answers, Proposed Removal of HIV Entry Ban

The Department of Health and Human Services (HHS) and Centers for Disease Control and Prevention (CDC) are proposing to remove HIV (human immunodeficiency virus) infection from the list of diseases that can keep people who are not U.S. citizens from entering the United States. These non-U.S. citizens are referred to as aliens.  Those 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 screened for these medical conditions.

Technical information about the proposal to remove 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 define the term “communicable disease of public health significance” and describe the medical examination that aliens must complete in order to determine whether they have one of these diseases.

CDC proposes to remove all references to HIV in these regulations.  If references to HIV are removed, aliens would not be tested for HIV and HIV-infected aliens would no longer be inadmissible to the United States.

Who are considered aliens?

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 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 “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 whether they are eligible 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.

What are the current rules for immigrants and refugees who have HIV?

Under current regulations and policy, HIV-infected immigrants and refugees are not allowed to be admitted to the United States unless granted a waiver by the Department of Homeland Security (DHS).  DHS may 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 no costs will be incurred by the government due to the condition (unless prior consent is given by the government).

What is the scope of examination? (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 “communicable disease of public health significance.”  It does not include testing requirements for other health-related conditions.  CDC/HHS proposes the removal of 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 on the list of “communicable diseases of public health significance.”  This legislative change allows 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 “communicable disease of public health significance” because its classification 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 examination. The medical screening relates directly to the definition of “communicable disease of public health significance” and provides testing requirements for these diseases.   The proposed rule removes HIV infection from both the list of “communicable disease of public health significance” and from the scope of the medical examination, eliminating all references to HIV in Part 34.

Why didn’t the October 6, 2008, Interim Final Rule (IFR), which added infectious disease categories to the list of communicable diseases of public health significance, remove HIV infection as a communicable disease of public health significance?

The IFR focused on adding disease categories that were a distinct threat to the American public through potential casual contact.  HHS/CDC decided to publish a separate Notice of Proposed Rule Making (NPRM) to remove HIV infection from the definition of “communicable disease of public health significance” to help avoid any confusion with the recently added disease categories in the IFR.

Why is HHS/CDC removing only HIV infection when other diseases still on the list of “communicable disease of public health significance” are also transmitted in the same way as HIV, e.g., other sexually transmitted infections?

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, based on sound public health science and current understanding of HIV epidemiology.  CDC will consider other diseases, including sexually transmitted diseases, for scientific review to determine if they should also be removed.

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.  An HIV-infected person in a common public setting will not place another individual at risk.  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. Diseases, such as tuberculosis, that are transmissible through aerosol or respiratory droplets do pose a risk through casual contact for introduction and spread in the U.S. population.

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 and 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 also can 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.  Therefore, the risk for HIV infection through transfusion is extremely low.  The U.S. blood supply is considered among the safest in the world.  For more information on the prevention of HIV, go to http://www.cdc.gov/hiv/topics/basic/index.htm

How does this proposed rule relate to the September 29, 2008, Human Immunodeficiency Virus (HIV) Waiver Final Rule issued by the Department of Homeland Security (DHS)?

The Department of Homeland Security’s HIV waiver final rule provided a more streamlined waiver process to allow nonimmigrant aliens with HIV infection to enter the United States as visitors. These visitors were granted short-term temporary visas for business or pleasure for up to 30 days (For more information, go to http://www.dhs.gov/xnews/releases/pr_1222704743103.shtm).

The DHS rule applies only to HIV-infected non-immigrants on a temporary visit.  While the DHS rule streamlined the waiver process for HIV-infected non-immigrants on a temporary visit, it did not remove HIV infection from the Part 34 definition of “communicable disease of public health significance.”

Where can more information be obtained about this proposed rule?

See more information about the revised provisions of this rule, the technical instructions for the medical screening examination, or view the rule in its entirety.