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November
2009 Newsletter November 17, 2009 DEAR CLIENTS AND FRIENDS: In April 1989, Hans-Paul Verhoef, a young Dutch educator and AIDS activist, was barred entry into the United States and then incarcerated while en route to attending an international AIDS conference in San Francisco. His only offense was that he was HIV-positive, which then constituted a complete and total bar to admission to the United States as a “communicable disease of public health significance.” Mr. Verhoef contacted our firm and in the ensuing month, we filed the first direct challenge to this blanket, unyielding bar to admission for HIV-positive noncitizens. We litigated the case before an Immigration Judge, who ruled that Mr. Verhoef should be admitted to the United States despite his infection owing to the short duration and educational purpose of his trip. Thereafter, the immigration authorities revised their regulations to provide waivers to HIV-infected noncitizens in limited, carefully defined instances, while recognizing that HIV-infected individuals as a general rule would not be allowed to enter the United States. In the ensuing years, we have seen substantial advancements in our understanding of the Human Immunodeficiency Virus (HIV), public health initiatives to control its spread, and medical advancements to retard (although not eliminate) its development. Yet, it is only now that we are witnessing the elimination of HIV as a ground of inadmissibility to the United States. Specifically, effective January 4, 2010, foreign nationals who are infected with HIV will no longer be barred from coming either temporarily or permanently to the United States. This Newsletter is intended to inform employers and foreign nationals, alike, of this development and its implications. But on a personal, heartfelt level, this new development represents the final stage in the journey that Hans-Paul Verhoef made to the United States over 20 years ago. The Law Regarding HIV Our immigration laws reflect a balancing of policy concerns, seeking to give America the benefits of the talents, labor, and diverse cultures of new immigrants while limiting any negative impact of immigration on the employment, health, and welfare of America’s existing population. Few of us would think it humane or even rational if our immigration laws prevented the entry of individuals who have ever had any disease of any kind without regard to whether or not the particular disease poses a threat to our population. Long gone are the days when our immigration laws excluded anyone based on highly subjective and pseudo-scientific bases such as being “feeble-minded, [or] insane, [or having] had one or more attacks of insanity.”[1] Our country’s immigration laws exclude from the United States those foreign citizens with “communicable diseases of public health significance.” This carefully chosen term reflects a balancing of interests and the desire to distinguish between diseases that are a genuine threat to the public and those that are not. For example, it makes sense to exclude from U.S. immigration eligibility foreign citizens who have an active case of H1N1 or SARS (Severe Acute Respiratory Syndrome), at least until their medical condition is no longer contagious. But consider a foreign citizen who several years ago had a case of tuberculosis (TB) but was successfully treated and is no longer contagious. It makes no sense to exclude such an individual from the United States. And so our laws strike a balance among competing interests of the public’s health and safety, our national values that provide opportunities of immigration, and. individual freedom. When Hans-Paul Verhoef traveled to the United States twenty years ago, there was a great deal of misunderstanding and fear about HIV and about how it spread. Some believed it could be spread by shaking hands or coughing and sneezing. Many of us remember how HIV was considered a swift and certain death sentence - in essence, a scourge reminiscent of the medieval Black Plague. HIV remains a serious illness that even at present has no cure. However, twenty years of medical research and a sustained public healthcare effort to correct myths and misunderstandings about HIV have led to a sea-tide change in the public’s perception and understanding of HIV-AIDS. For many HIV-positive individuals in the United States (perhaps the most famous of whom is NBA star Magic Johnson), living with HIV has become akin to living with many other chronic-but-manageable diseases such as diabetes and heart disease. As the Department of Health and Human Services (HHS) explained its reasoning for the recent change, “[t]here is no evidence to suggest immigration to the [United States] significantly affects HIV incidence in this country in one direction or the other.”[2] Given that “HIV infection is not a communicable disease that is a significant risk for introduction and spread through casual contact to the general U. S. population, where HIV infection already exists as an endemic disease,”[3] HHS determined there was no longer a reason to include HIV on the list of diseases that (if untreated) bars entry to the United States.[4] The Recent Changes Effective January 4, 2010, HIV will be completely removed from the list of communicable diseases of public health significance.[5] Since being HIV positive will no longer be grounds for denying entry to the United States, testing for HIV will be eliminated after that date from the medical exam conducted as part of the permanent residence process. What Does This Mean For You Or Your Employees? The immediate effect of this change for HIV-infected noncitizens is the following: After January 4, 2010, applicants for temporary, nonimmigrant admission and for permanent residence (i.e., “green card” status) will no longer require discretionary waivers. As such, HIV will no longer be considered a medical condition that will affect a foreign national’s eligibility to come to the United States. The impact on eligibility for permanent residence bears particular notice since this removes a major immigration hurdle for many individuals and their employers. Over the past twenty years, waivers have become available to HIV-infected applicants who had certain qualifying relatives (most commonly a U.S. Citizen or Permanent Resident spouse or child) and who could demonstrate that the public would not bear the cost of their treatment (usually demonstrated through having private medical insurance).[6] But in most instances, HIV-infected noncitizens remained ineligible for permanent residence through the employment-based immigration process. While family-based immigration, by definition, meets at least the requirement of an anchor U.S. relative for waiver purposes, our laws have not recognized the interests of employers or job skills for waiver purposes. As a consequence, HIV-infected noncitizens have continued to be excluded from immigration benefits if they are seeking permanent residence under an employer’s sponsorship (usually through the Labor Certification Application process), as well as foreign investors, religious workers, and noncitizens having critically needed, advanced skills of national importance who would normally be able to sponsor themselves in direct recognition of their important contributions to our national welfare. This has been particularly frustrating since most employment-based immigrants are professional workers who are likely to have private medical insurance coverage for the treatment and management of their HIV infection. Yet despite these facts, obtaining permanent residence remained difficult – bordering on impossible – due to the need for an anchor U.S. Citizen or Permanent Resident relative. This new development will simply once-and-for-all remove HIV-AIDS as a consideration in determining the eligibility of a noncitizen to immigrate to the United States. We welcome this long-overdue change in America’s immigration laws. We further encourage our community of foreign nationals and their employers to contact us about this rule change and its relevance to their own situations. It is always a pleasure to hear from those whom we serve. ________________________ 1 From Section 212(a)(1) – (3) of the original Immigration and Nationality Act of 1952 (subsequently amended). 2 74 Fed. Reg. 56547, 56558. To view a copy of HHS Secretary Kathleen Sebelius’ statement accompanying this new rule change, see http://www.hhs.gov/news/press/2009pres/11/20091102b.html 3 id. at 56551. 4 The revised list of diseases is: chancroid, gonorrhea, granuloma inguinale, infectious leprosy, lymphogranuloma venereum, infections stage syphilis, active tuberculosis, and quarantinable communicable diseases or communicable diseases presenting a public health emergency (for example, SARS). 5 Medical Examination of Aliens—Removal of Human Immunodeficiency Virus (HIV) Infection From Definition of Communicable Disease of Public Health Significance, 74 Fed Reg. 56547 (Nov. 2, 2009) 6 Refugees and asylees with HIV have been exempted from the need for a qualifying relative and from having private health insurance through a general humanitarian waiver. See INA § 209(c). This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served byAronson& Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates,
P.A. |