lorenzo
30th October 2009, 14:16
ARTICLE FROM WWW.PLWHA.ORG
Special Waiver
HIV travel restrictions and retreats: www.plwha.org
The United States of America is one of the countries that prohibit HIV-positive foreigners to enter its borders. HIV-positive people must request a special waiver to be granted entrance to the US. This waiver, pictured above and referred to as Waiver of 212(A)(1), is stamped into an HIV-positive persons passport as a permanent record of his or her HIV status.
We believe that people living with HIV/AIDS have the right to full enjoyment of their human rights, including the right to privacy, confidentiality and protection from stigma and discrimination. Short-term travel policies of any country, in which disclosure of HIV status is required for prospective visitors, treat HIV-positive people seeking entry on short term visas differently on the basis of their HIV-positive status. These are not only discriminatory, but also contribute to fuelling national and international stigma against people living with HIV/AIDS.
Is it possible to enter the USA legally with HIV ?
Yes, it is possible, under certain circumstances:
to attend conferences
to receive medical treatment
to visit close family members
to conduct business
However, this requires applying for a stigmatising HIV visa waiver. Even if the waiver is granted – which may take three months or longer to obtain, and requires a personal interview at the US Embassy – the person’s passport is endorsed to show that this person may not enter the US without the waiver, which must be renegotiated on each entry. This also means that people who once apply for an HIV visa waiver will always have to go through this process when they plan to visit the US in the future, irrespective of the fact if the waiver has been granted or not.
This can cause further HIV disclosure issues on entering other countries, where immigration officers and consular staff may want to know why the passport holder is barred from the US.
Despite the consensus among experts that HIV travel bans are unnecessary and harmful to public health the U.S. still shuts its borders to visitors with HIV. The United States Citizenship and Immigration Service (USCIS) sometimes grants a waiver for HIV positive visa applicants hoping to stay for 30 days or less, according to the “Quick Reference” database. This is for family visits, medical treatment, business travel, or participation in a scientific, health-related conference. Be sure to apply several months in advance, and don’t make irreversible travel plans until you hear back — and you won’t hear back until less than 30 days before you hope to enter the U.S. If you are changing planes in the U.S. but not planning to visit, check with your airline about whether you will need to go through customs.
What are people doing to enter the country anyway?
This is not very difficult, as long a visitor has no visible symptoms of illness and/or no antiretrovirals to take. For people on treatment however, the question becomes tricky.
People on ARVs use more or less crafty strategies to circumvent the regulations. We do not legally recommend any of those.
We try to describe the US policies and how they might apply in various circumstances, and then let the reader make their own decisions about what to do.
It might well be that some of the bypassing strategies below would also be a violation of US immigration laws or other US laws. We don’t know what the consequences of such violations might be. It could be that they, too, result in a permanent ban on entry. That might not make much difference to someone, since once they’re found out, they’re found out and barred from re-entry anyway.
1. The probably safest strategy
Rebottle medications with non-prescription packaging
Have a letter from a clinician on you
Get the meds rebottled in neutral packaging and properly labeled by your pharmacy (which means without mentioning the nature or brand name of the drugs). To comply with US law, you need to carry a letter from a clinician which states that your drugs are prescribed for a personal medical condition. This letter should not mention HIV. Be ready to answer the question why you need these meds without hesitation (blood pressure, coronary problems, etc.).
“There is no legal requirement that you keep your pills in the original, labeled bottle in which they came,” says Ronda Goldfein, executive director of the Philadelphia-based AIDS Law Project.
Risk:
Small, especially with today’s therapies (reduced number of pills). Plan well ahead to have everything ready.
Advice:
You should carry the drugs in your hand luggage. Checked luggage is sometimes late or can get lost completely. However, be aware that the drugs can be detected more easily that way.
2. Carry the needed drugs on you, or in your luggage
This is, as the Brighton study shows below, what most people do.
Risk:
There is a certain risk of being detected, by immigration officials, or by customs. Since September 11 2001, luggage is checked more frequently and more thoroughly. If this happens, you may face deportation by the next available flight. As a consequence, there is zero chance of being readmitted to enter the US at a later occasion.
Advice:
HIV-positives are advised to take enough medication to cover delays.
To comply with US law, you need to carry a letter from a clinician which states that your drugs are prescribed for a personal medical condition. This letter should not mention HIV. Be ready to answer the question why you need these meds without hesitation (blood pressure, coronary problems, etc.).
You should carry the drugs in your hand luggage. Checked luggage is sometimes late or can get lost completely. However, be aware that the drugs can be detected more easily that way.
Leaving the US with remaining ARVs in the hand luggage is not free of risk. The authors know of a case where an HIV-positive person had his hand luggage searched through customs officials after boarding the plane. His drugs were detected, he cannot return to the US anymore.
Take a last dose to be safe during travel, before checking in, eliminate remaining meds and ensure to have drugs available when needed after arrival. However, there is a small risk in case of delayed departure.
3. Send your meds in advance by mail
This needs to be carefully planned:
Identify a US citizen to whom you can mail the drugs safely.
Put a note in the parcel, saying that the drugs are a donation (this is credible, as many people in the United States have no health insurance and live on donated drugs).
Make sure that the sender of the parcel is an HIV-negative family member, friend or a US citizen.
Advice:
Plan the mailing well in advance to have enough time for a second parcel in case the first one is lost.
Risk:
The most surprising conclusion of the Brighton study was that people who took up the option of mailing their drugs to the US were more likely to stop treatment than those who chose to carry their drugs with them.
This was because of the 12 people who attempted to mail their drugs ahead of time, only seven were successful (58%). This compares with 62/83 (75%) of those who took their drugs with them.
Of the five who were unsuccessful, two reported that their drugs did not reach the USA (most likely prevented from entering by US customs); one reported that their drugs arrived late; and a further two found that they were unable to mail their drugs at all. Since 9/11 the Post Office and courier firms now require a detailed description of the contents of any package sent to the US, with full details of the sender as well as the addressee. This makes the sending of antiretrovirals anonymously impossible, and once the sender includes their details, the same fears of discovery by US officials would then apply.
If you are not carrying medication and you are spot checked, there is obviously less risk that it will be discovered that you are HIV . However, you are still breaking the law by attempting to enter under the visa waiver system.
4. Buy your meds in the US
This looks simple, but also needs some planning.
Contact your health insurance to learn if drugs you purchase in the US are reimbursed (medication, including antiretrovirals, are often more expensive in the US than elsewhere).
Get a prescription for the medication you are taking from your doctor.
Take a last dose of your meds before leaving the plane.
Get an appointment with an HIV specialist on arrival to get a prescription.
Buy your drugs through a US pharmacy.
US contacts to locate HIV specialists:
Act Up, New York
Web: www.actupny.org
E-mail: actupny@panix.com
Gay Men’s Health Crisis, New York
Web: www.gmhc.org
E-mail: hotline@gmhc.org
Phone: +1 212 807 6655
5. Considerations before stopping medications
As the Brighton study shows below, some people decide to interrupt treatment before travelling to the US. THIS CAN BE VERY RISKY.
If you are thinking of stopping your medications when travelling to the US it is imperative that you consult with either your HIV clinician or pharmacist well ahead before doing so, otherwise you run the risk of acquiring new or further resistance that could have significant future health risks. Remember also that if you do stop HAART that you may feel ill during your trip, and that you may also be more infectious.
IMPORTANT: Never ever discuss your HIV status with US officials!
First-ever study on ban’s health effects
Until recently, there had been no research on the physical, emotional and psychological effects of the ban on HIV-positive people. Late 2003, however, a study from Brighton and Sussex University Hospitals was presented as a poster at the European AIDS Conference in Warsaw. [4]
The study sought to determine whether those attending the Lawson Unit HIV Outpatients’ Clinic in Brighton travelled with a visa waiver and/or medical insurance, and to establish how they managed their HAART medications when travelling.
A self-completion questionnaire was given to everyone who attended the clinic in February and March last year. Of 642 attendees, 346 completed the questionnaire, of which 96.5% were male, with an average age of 41.
In total, 135 (39%) respondents had travelled to the US since their HIV diagnosis, all but two of them “illegally”.
One-in-eight interrupted treatment
The most striking – and worrying – finding of the Brighton study was the way people travelling to the US without an HIV waiver managed their drugs.
Of the 83 respondents on HAART who travelled to the US, 10 (12,5%) stopped their drugs for the duration of their stay. Five chose to take treatment interruptions prior to leaving for the States, and five had problems with mailing their drugs.
Of the ten who interrupted their treatment, five were on NNRTI-based HAART, which, due to its longer half-life, must be stopped ahead of the other HAART components in order to reduce the likelihood of NNRTI mutations that could lead to clinical resistance.
In the Brighton study, only one of the five on NNRTI-based regimens stopped their NNRTI in the best-possible way after consulting with their HIV clinician. This person switched from efavirenz to tenofovir two weeks prior to stopping all drugs. The remaining four stopped their NNRTI two days, one day or at the same time as the rest of their HAART combination.
Of the three people who had short- or long-term problems due to their treatment interruption, one subsequently developed NNRTI drug resistance. This was a highly drug experienced patient who has subsequently run out of options now that he has also developed resistance to T-20.
The other two developed intermittent fevers, arthralgia, headaches and diarrhea, symptomatic of a viral load rebound, whilst in the US.
The study results confirm the fears that people with HIV are still travelling to the US and it seems they choose to go on an unplanned drug holiday because they fear they will have their drugs found on them.
Inadequate insurance
Despite the fact that 62% (n=215) of all respondents were aware that an HIV waiver was required, more than two-thirds (n=88) of all those who travelled to the US did so without adequate HIV medical insurance. This is not only risky, it is also another reason that the US says the HIV travel ban is in place: to make sure that foreigners do not place undue stress upon the US public health system.
Indeed, according to Section 212(a)(1)(A)(i) of the Immigration and Nationality Act: “The applicant must demonstrate that he or she is not currently afflicted with symptoms of the disease; there are sufficient assets, such as insurance, that would cover any medical care that might be required in the event of illness while in the United States; the proposed visit to the United States is for 30 days or less; and that the visit will not pose a danger to public health in the United States.” [5]
www.immigration-usa.com/ina_96_title_2.html
It is highly recommended to anybody, HIV-positive or not, to inquire the need for additional insurance coverage before any trip to any country.
Citizens of the EU, the EEA and CH are covered for trips within these countries. Form E111 needs to be carried along.
A blunt instrument
Although one of the reasons for the US HIV ban is to control and monitor HIV-positive people entering the country, of the 135 who travelled to the US, only two (1,5%) actually travelled with an HIV waiver: 98,5% entered then country without the US knowing their HIV status. The most common reason (83%) given for not applying for an HIV waiver concerned disclosure to both the US and travelling companions.
Ironically, if the law is there to prevent onwards transmission of HIV from foreign visitors, by forcing a significant minority into treatment interruption – which invariably leads to a rise in viral load and therefore, theoretically, a rise in the likelihood of transmission – it is counterproductive
KNOW YOUR RIGHTS
Immigration border agents are not supposed to make medical determinations and a noncitizen’s own admission to having HIV is not sufficient proof to deny entry. The noncitizen should be paroled in for deferred inspection for admission and undergo an HIV antibody test administered by a doctor of the Public Health Service (a doctor approved by immigration.) The doctor will notify immigration of the HIV test results. DHS may detain (jail) the noncitizen during this process or give them an appointment to return.
If a noncitizen is eligible to apply for a waiver, he or she may ask immigration for the waiver. If the noncitizen is not eligible or is later denied a waiver by immigration, he or she will then go before an immigration judge.
Because of the 1996 laws reforming many immigration procedures, DHS officers now may “summarily remove” certain noncitizens entering the United States, without a hearing with an immigration judge. This procedure is called “expedited removal” and applies to those trying to enter the United States with false or no immigration documents. It does NOT apply to HIV positive noncitizens with valid visas or to lawful permanent residents. Thus a non-immigrant or visitor with valid entry documents should not be subject to summary removal. Any noncitizen wishing to challenge their expedited removal by DHS should insist on a hearing with an immigration judge. Otherwise, a DHS agent may try to convince the noncitizen to leave the United States on the next plane or bus.
Tips for Travelers
Finding HIV-related medicine or literature about AIDS in a noncitizen’s bag may lead a DHS officer to ask a traveler questions about HIV. For this reason, visitors (non-immigrants) should try not to carry their HIV medicine or literature about AIDS in their luggage when they come into the United States. Other noncitizens with HIV who are leaving the US should consider bringing only the amount of medicine they will need for their trip and plan to get new medicine when they return. It is important that ALL travelers know their rights.
If a DHS agent stops and questions a visitor (non-immigrant) with HIV, the visitor should ask for the HIV waiver for visitors. This is different than the waiver for noncitizens intending to stay in the United States (immigrants).
If a DHS agent won’t grant the waiver, the visitor should ask for a hearing before an immigration judge.
If a DHS agent stops and questions a lawful permanent resident, the lawful permanent resident should demand to call his or her lawyer. If the agent arrests him or her, he or she should insist on a hearing with an immigration judge.
If a DHS officer decides any noncitizen traveler is HIV positive, the noncitizen should talk to a lawyer before answering any of the DHS officer’s questions. Otherwise, what the noncitizen says can be used against him or her in an immigration hearing. DHS agents are not required to inform an individual of their rights until after their arrest and placement in formal proceedings. Therefore, there are numerous cases where immigrants are not informed of their rights while in DHS custody.
Noncitizens stopped by DHS may wish to assert their right to be paroled into the United States for “deferred inspection,” since only immigration-approved doctors, not immigration agents, can make a medical determination of inadmissibility. A noncitizen’s admission to having HIV is not sufficient proof to keep him or her out. DHS may decide to detain (jail) the noncitizen during this process, however, or release them with an appointment to return.
MORE INFO ON WWW.PLWHA.ORG
Special Waiver
HIV travel restrictions and retreats: www.plwha.org
The United States of America is one of the countries that prohibit HIV-positive foreigners to enter its borders. HIV-positive people must request a special waiver to be granted entrance to the US. This waiver, pictured above and referred to as Waiver of 212(A)(1), is stamped into an HIV-positive persons passport as a permanent record of his or her HIV status.
We believe that people living with HIV/AIDS have the right to full enjoyment of their human rights, including the right to privacy, confidentiality and protection from stigma and discrimination. Short-term travel policies of any country, in which disclosure of HIV status is required for prospective visitors, treat HIV-positive people seeking entry on short term visas differently on the basis of their HIV-positive status. These are not only discriminatory, but also contribute to fuelling national and international stigma against people living with HIV/AIDS.
Is it possible to enter the USA legally with HIV ?
Yes, it is possible, under certain circumstances:
to attend conferences
to receive medical treatment
to visit close family members
to conduct business
However, this requires applying for a stigmatising HIV visa waiver. Even if the waiver is granted – which may take three months or longer to obtain, and requires a personal interview at the US Embassy – the person’s passport is endorsed to show that this person may not enter the US without the waiver, which must be renegotiated on each entry. This also means that people who once apply for an HIV visa waiver will always have to go through this process when they plan to visit the US in the future, irrespective of the fact if the waiver has been granted or not.
This can cause further HIV disclosure issues on entering other countries, where immigration officers and consular staff may want to know why the passport holder is barred from the US.
Despite the consensus among experts that HIV travel bans are unnecessary and harmful to public health the U.S. still shuts its borders to visitors with HIV. The United States Citizenship and Immigration Service (USCIS) sometimes grants a waiver for HIV positive visa applicants hoping to stay for 30 days or less, according to the “Quick Reference” database. This is for family visits, medical treatment, business travel, or participation in a scientific, health-related conference. Be sure to apply several months in advance, and don’t make irreversible travel plans until you hear back — and you won’t hear back until less than 30 days before you hope to enter the U.S. If you are changing planes in the U.S. but not planning to visit, check with your airline about whether you will need to go through customs.
What are people doing to enter the country anyway?
This is not very difficult, as long a visitor has no visible symptoms of illness and/or no antiretrovirals to take. For people on treatment however, the question becomes tricky.
People on ARVs use more or less crafty strategies to circumvent the regulations. We do not legally recommend any of those.
We try to describe the US policies and how they might apply in various circumstances, and then let the reader make their own decisions about what to do.
It might well be that some of the bypassing strategies below would also be a violation of US immigration laws or other US laws. We don’t know what the consequences of such violations might be. It could be that they, too, result in a permanent ban on entry. That might not make much difference to someone, since once they’re found out, they’re found out and barred from re-entry anyway.
1. The probably safest strategy
Rebottle medications with non-prescription packaging
Have a letter from a clinician on you
Get the meds rebottled in neutral packaging and properly labeled by your pharmacy (which means without mentioning the nature or brand name of the drugs). To comply with US law, you need to carry a letter from a clinician which states that your drugs are prescribed for a personal medical condition. This letter should not mention HIV. Be ready to answer the question why you need these meds without hesitation (blood pressure, coronary problems, etc.).
“There is no legal requirement that you keep your pills in the original, labeled bottle in which they came,” says Ronda Goldfein, executive director of the Philadelphia-based AIDS Law Project.
Risk:
Small, especially with today’s therapies (reduced number of pills). Plan well ahead to have everything ready.
Advice:
You should carry the drugs in your hand luggage. Checked luggage is sometimes late or can get lost completely. However, be aware that the drugs can be detected more easily that way.
2. Carry the needed drugs on you, or in your luggage
This is, as the Brighton study shows below, what most people do.
Risk:
There is a certain risk of being detected, by immigration officials, or by customs. Since September 11 2001, luggage is checked more frequently and more thoroughly. If this happens, you may face deportation by the next available flight. As a consequence, there is zero chance of being readmitted to enter the US at a later occasion.
Advice:
HIV-positives are advised to take enough medication to cover delays.
To comply with US law, you need to carry a letter from a clinician which states that your drugs are prescribed for a personal medical condition. This letter should not mention HIV. Be ready to answer the question why you need these meds without hesitation (blood pressure, coronary problems, etc.).
You should carry the drugs in your hand luggage. Checked luggage is sometimes late or can get lost completely. However, be aware that the drugs can be detected more easily that way.
Leaving the US with remaining ARVs in the hand luggage is not free of risk. The authors know of a case where an HIV-positive person had his hand luggage searched through customs officials after boarding the plane. His drugs were detected, he cannot return to the US anymore.
Take a last dose to be safe during travel, before checking in, eliminate remaining meds and ensure to have drugs available when needed after arrival. However, there is a small risk in case of delayed departure.
3. Send your meds in advance by mail
This needs to be carefully planned:
Identify a US citizen to whom you can mail the drugs safely.
Put a note in the parcel, saying that the drugs are a donation (this is credible, as many people in the United States have no health insurance and live on donated drugs).
Make sure that the sender of the parcel is an HIV-negative family member, friend or a US citizen.
Advice:
Plan the mailing well in advance to have enough time for a second parcel in case the first one is lost.
Risk:
The most surprising conclusion of the Brighton study was that people who took up the option of mailing their drugs to the US were more likely to stop treatment than those who chose to carry their drugs with them.
This was because of the 12 people who attempted to mail their drugs ahead of time, only seven were successful (58%). This compares with 62/83 (75%) of those who took their drugs with them.
Of the five who were unsuccessful, two reported that their drugs did not reach the USA (most likely prevented from entering by US customs); one reported that their drugs arrived late; and a further two found that they were unable to mail their drugs at all. Since 9/11 the Post Office and courier firms now require a detailed description of the contents of any package sent to the US, with full details of the sender as well as the addressee. This makes the sending of antiretrovirals anonymously impossible, and once the sender includes their details, the same fears of discovery by US officials would then apply.
If you are not carrying medication and you are spot checked, there is obviously less risk that it will be discovered that you are HIV . However, you are still breaking the law by attempting to enter under the visa waiver system.
4. Buy your meds in the US
This looks simple, but also needs some planning.
Contact your health insurance to learn if drugs you purchase in the US are reimbursed (medication, including antiretrovirals, are often more expensive in the US than elsewhere).
Get a prescription for the medication you are taking from your doctor.
Take a last dose of your meds before leaving the plane.
Get an appointment with an HIV specialist on arrival to get a prescription.
Buy your drugs through a US pharmacy.
US contacts to locate HIV specialists:
Act Up, New York
Web: www.actupny.org
E-mail: actupny@panix.com
Gay Men’s Health Crisis, New York
Web: www.gmhc.org
E-mail: hotline@gmhc.org
Phone: +1 212 807 6655
5. Considerations before stopping medications
As the Brighton study shows below, some people decide to interrupt treatment before travelling to the US. THIS CAN BE VERY RISKY.
If you are thinking of stopping your medications when travelling to the US it is imperative that you consult with either your HIV clinician or pharmacist well ahead before doing so, otherwise you run the risk of acquiring new or further resistance that could have significant future health risks. Remember also that if you do stop HAART that you may feel ill during your trip, and that you may also be more infectious.
IMPORTANT: Never ever discuss your HIV status with US officials!
First-ever study on ban’s health effects
Until recently, there had been no research on the physical, emotional and psychological effects of the ban on HIV-positive people. Late 2003, however, a study from Brighton and Sussex University Hospitals was presented as a poster at the European AIDS Conference in Warsaw. [4]
The study sought to determine whether those attending the Lawson Unit HIV Outpatients’ Clinic in Brighton travelled with a visa waiver and/or medical insurance, and to establish how they managed their HAART medications when travelling.
A self-completion questionnaire was given to everyone who attended the clinic in February and March last year. Of 642 attendees, 346 completed the questionnaire, of which 96.5% were male, with an average age of 41.
In total, 135 (39%) respondents had travelled to the US since their HIV diagnosis, all but two of them “illegally”.
One-in-eight interrupted treatment
The most striking – and worrying – finding of the Brighton study was the way people travelling to the US without an HIV waiver managed their drugs.
Of the 83 respondents on HAART who travelled to the US, 10 (12,5%) stopped their drugs for the duration of their stay. Five chose to take treatment interruptions prior to leaving for the States, and five had problems with mailing their drugs.
Of the ten who interrupted their treatment, five were on NNRTI-based HAART, which, due to its longer half-life, must be stopped ahead of the other HAART components in order to reduce the likelihood of NNRTI mutations that could lead to clinical resistance.
In the Brighton study, only one of the five on NNRTI-based regimens stopped their NNRTI in the best-possible way after consulting with their HIV clinician. This person switched from efavirenz to tenofovir two weeks prior to stopping all drugs. The remaining four stopped their NNRTI two days, one day or at the same time as the rest of their HAART combination.
Of the three people who had short- or long-term problems due to their treatment interruption, one subsequently developed NNRTI drug resistance. This was a highly drug experienced patient who has subsequently run out of options now that he has also developed resistance to T-20.
The other two developed intermittent fevers, arthralgia, headaches and diarrhea, symptomatic of a viral load rebound, whilst in the US.
The study results confirm the fears that people with HIV are still travelling to the US and it seems they choose to go on an unplanned drug holiday because they fear they will have their drugs found on them.
Inadequate insurance
Despite the fact that 62% (n=215) of all respondents were aware that an HIV waiver was required, more than two-thirds (n=88) of all those who travelled to the US did so without adequate HIV medical insurance. This is not only risky, it is also another reason that the US says the HIV travel ban is in place: to make sure that foreigners do not place undue stress upon the US public health system.
Indeed, according to Section 212(a)(1)(A)(i) of the Immigration and Nationality Act: “The applicant must demonstrate that he or she is not currently afflicted with symptoms of the disease; there are sufficient assets, such as insurance, that would cover any medical care that might be required in the event of illness while in the United States; the proposed visit to the United States is for 30 days or less; and that the visit will not pose a danger to public health in the United States.” [5]
www.immigration-usa.com/ina_96_title_2.html
It is highly recommended to anybody, HIV-positive or not, to inquire the need for additional insurance coverage before any trip to any country.
Citizens of the EU, the EEA and CH are covered for trips within these countries. Form E111 needs to be carried along.
A blunt instrument
Although one of the reasons for the US HIV ban is to control and monitor HIV-positive people entering the country, of the 135 who travelled to the US, only two (1,5%) actually travelled with an HIV waiver: 98,5% entered then country without the US knowing their HIV status. The most common reason (83%) given for not applying for an HIV waiver concerned disclosure to both the US and travelling companions.
Ironically, if the law is there to prevent onwards transmission of HIV from foreign visitors, by forcing a significant minority into treatment interruption – which invariably leads to a rise in viral load and therefore, theoretically, a rise in the likelihood of transmission – it is counterproductive
KNOW YOUR RIGHTS
Immigration border agents are not supposed to make medical determinations and a noncitizen’s own admission to having HIV is not sufficient proof to deny entry. The noncitizen should be paroled in for deferred inspection for admission and undergo an HIV antibody test administered by a doctor of the Public Health Service (a doctor approved by immigration.) The doctor will notify immigration of the HIV test results. DHS may detain (jail) the noncitizen during this process or give them an appointment to return.
If a noncitizen is eligible to apply for a waiver, he or she may ask immigration for the waiver. If the noncitizen is not eligible or is later denied a waiver by immigration, he or she will then go before an immigration judge.
Because of the 1996 laws reforming many immigration procedures, DHS officers now may “summarily remove” certain noncitizens entering the United States, without a hearing with an immigration judge. This procedure is called “expedited removal” and applies to those trying to enter the United States with false or no immigration documents. It does NOT apply to HIV positive noncitizens with valid visas or to lawful permanent residents. Thus a non-immigrant or visitor with valid entry documents should not be subject to summary removal. Any noncitizen wishing to challenge their expedited removal by DHS should insist on a hearing with an immigration judge. Otherwise, a DHS agent may try to convince the noncitizen to leave the United States on the next plane or bus.
Tips for Travelers
Finding HIV-related medicine or literature about AIDS in a noncitizen’s bag may lead a DHS officer to ask a traveler questions about HIV. For this reason, visitors (non-immigrants) should try not to carry their HIV medicine or literature about AIDS in their luggage when they come into the United States. Other noncitizens with HIV who are leaving the US should consider bringing only the amount of medicine they will need for their trip and plan to get new medicine when they return. It is important that ALL travelers know their rights.
If a DHS agent stops and questions a visitor (non-immigrant) with HIV, the visitor should ask for the HIV waiver for visitors. This is different than the waiver for noncitizens intending to stay in the United States (immigrants).
If a DHS agent won’t grant the waiver, the visitor should ask for a hearing before an immigration judge.
If a DHS agent stops and questions a lawful permanent resident, the lawful permanent resident should demand to call his or her lawyer. If the agent arrests him or her, he or she should insist on a hearing with an immigration judge.
If a DHS officer decides any noncitizen traveler is HIV positive, the noncitizen should talk to a lawyer before answering any of the DHS officer’s questions. Otherwise, what the noncitizen says can be used against him or her in an immigration hearing. DHS agents are not required to inform an individual of their rights until after their arrest and placement in formal proceedings. Therefore, there are numerous cases where immigrants are not informed of their rights while in DHS custody.
Noncitizens stopped by DHS may wish to assert their right to be paroled into the United States for “deferred inspection,” since only immigration-approved doctors, not immigration agents, can make a medical determination of inadmissibility. A noncitizen’s admission to having HIV is not sufficient proof to keep him or her out. DHS may decide to detain (jail) the noncitizen during this process, however, or release them with an appointment to return.
MORE INFO ON WWW.PLWHA.ORG