Viewing cable 09STATE128614, HIV FINAL RULE

UNCLASSIFIED   STATE   00128614
VZCZCXRO8170
PP RUEHIK
DE RUEHC #8614/01 3501930
ZNR UUUUU ZZH
P 161926Z DEC 09
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE PRIORITY
RUEHTRO/AMEMBASSY TRIPOLI PRIORITY 1506
RUEHRY/AMEMBASSY CONAKRY PRIORITY 2744

UNCLAS SECTION 01 OF 05 STATE 128614

E.O. 12958: N/A
TAGS: CVIS CMGT
SUBJECT: HIV FINAL RULE

STATE 00128614  001.2 OF 005

¶1.  SUMMARY:  On November 2,   the Department of Health
and Human Services, Centers for Disease Control and
Prevention (HHS/CDC), published a Final Rule in the
Federal Register that will remove HIV infection from the
list of communicable diseases of public health
significance and remove references to HIV from the scope
of medical examinations for aliens.  The final rule will
go into effect on January 4, 2010.  This cable provides
guidance to posts for handling cases involving HIV after
January 4, 2010, and in the interim.  END SUMMARY.

¶2.  The CDC published a final rule in the Federal
Register on November 2, 2009, entitled Medical
Examination of Aliens - Removal of Human
Immunodeficiency Virus (HIV) Infection from Definition
of Communicable Disease of Public Health Significance
(HIV Final Rule) (http://www.gpo.gov/fdsys/pkg/FR-2009-
11-02/pdf/E9-26337.pdf).  The final rule amends Title 42
of the Code of Federal Regulations (CFR), Part 34, by
removing HIV infection from the definition of
communicable disease of public health significance and
by removing references to HIV from the scope of medical
examinations for aliens.  The final rule goes into
effect on January 4, 2010.  As of this date, HIV
infection will no longer be an inadmissible condition,
and HIV testing will no longer be required for medical
examinations for visa purposes.  Further, applicants who
are HIV-positive will no longer require waiver
processing by the Department of Homeland Security (DHS).

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FAM Updates
-----------

¶3.  By the effective date of the final rule, January 4,
2010, the HIV Technical Instructions will be removed
from the CDC website.  CDC guidance to panel physicians
about the HIV final rule is forthcoming and will be
posted on the CDC website.  The guidance from CDC will
discuss panel physicians counseling applicants on HIV
and recommend testing to any visa applicants who may
benefit from having testing for HIV infection.  A panel
physician may also perform the HIV testing if the
applicant consents to it, but must disclose to the
applicant that the applicant does not have to be tested
for HIV and that the results of the HIV test will be
provided to the consular section processing his or her
visa application as part of the visa medical examination
packet of forms.

When HIV infection is disclosed by an applicant, the
panel physician should record the HIV infection as a
Class B Other condition on the DS 2053/2054.  Panel
physicians should put a line through the spaces for HIV
test results on the DS 2053/2054 until those forms are
amended.

¶4.  A new Note will be added to 9 FAM as 9 FAM 42.66 and
will read as follows:

9 FAM 42.66 N17 APPLICANTS SUSPECTED OF BEING HIV
POSITIVE BY THE PANEL PHYSICIAN

On November 2, 2009, CDC issued the HIV Final Rule
removing HIV infection from the definition of
communicable disease of public health significance
effective January 4, 2010.  It removed HIV infection as
a ground of ineligibility under 42 CFR 34 and serologic
testing for HIV from the scope of the medical
examination for immigration purposes.  However, for
applicants who may benefit from being tested for HIV,
the panel physician may counsel the applicant about HIV,
and may administer an HIV serologic test, if the
applicant consents to the testing.  The panel physician
must also inform the applicant that they do not have to
be tested for HIV and that the results of the HIV
serologic testing will be provided to the consular
section processing his or her visa application as part
of the visa medical examination packet of forms.

---END Text of Revised 9 FAM 42.66 N17---

¶5.  9 FAM 40.11 N9 will be amended as follows to reflect
the change to the list of communicable disease of public
health significance:

INA 212(a)(1)(A)(i) refers to an excludable disease as
"communicable disease of public health significance."

STATE 00128614  002.2 OF 005

The CDC Technical Instructions lists these diseases in
42 CFR 34(b).  The following diseases are those that CDC
currently defines as "communicable diseases of public
health significance:" Note that as of January 4, 2010,
HIV is no longer included in this list.

(1)  Chancroid;

(2)  Communicable diseases as listed until Section
361(b) of the Public Health Service Act.  The revised
list of quarantinable communicable diseases is available
on the CDC Public Health Service website;

(3)  Communicable diseases that may pose a public health
emergency of international concern if it meets one or
more of the listed factors in 42 CFR 34.3(d);

(4)  Gonorrhea;

(5)  Granuloma inguinale;

(6)  Hansen's disease (Leprosy), infectious;

(7)  Lymphogranuloma venereum;

(8)  Syphilis, infectious stage; and

(9)  Tuberculosis, active.

---END Text of Revised 9 FAM 40.11 N9---

¶6.  9 FAM 40.11 N9.1 will be amended as follows to
reflect the change in regulation:

HIV-positive applicants who were refused a visa under
INA Section 212(a)(1)(A)(i) prior to January 4, 2010,
are no longer ineligible.  Procedures for processing
these cases are as follows:

a.  If the last refusal on the case was less than one
year ago, then the 212(a)(1)(A)(i) refusal should be
overcome/waived in the system and a CLOK should be sent
to remove the ineligibility from CLASS.  If the medical
examination has expired it must be repeated.

b.  If the last refusal on the case was more than one
year ago, then the applicant must reapply for a visa,
complete a new medical examination with a panel
physician, and pay all applicable fees.  The
212(a)(1)(A)(i) refusal should be overcome/waived in the
system at the time of interview and a CLOK should be
sent to remove the ineligibility from CLASS.  If the
applicant is otherwise eligible, then the visa may be
issued.

c.  If a waiver application has already been submitted
to USCIS and is pending decision, the application should
be held until USCIS approval is granted or until January
4, 2010, when a CLOK may be sent and the visa issued
without a waiver (see para 11).

---END Text of Revised 9 FAM 40.11 N9.1---

Although applicants with HIV cannot be found ineligible
for visas under Section 212(a)(1)(A)(i) of the INA
starting on January 4, 2010, they still must overcome
INA Section 212(a)(4), public charge, by demonstrating
to consular officers that they will have means of
support in the United States and that they, therefore,
will not need to seek public financial assistance.

¶8.  9 FAM 40.11 N9.1-1 will be amended as follows to
reflect the change in regulation:

a.  Under section 212(a)(4) of the INA, an immigrant
visa (IV) applicant must demonstrate that he or she has
a means of support in the United States and that he or
she, therefore, will not need to seek public financial
assistance.  It may be difficult for HIV-positive
applicants to meet this requirement of the law because
the cost of treating the illness can be very high and
because the applicant may not be able to work or obtain
medical insurance.  You must be satisfied that the
applicant has access to funds sufficient for his or her
support.  You need to consider the family's income and
other assets, including medical insurance coverage for
any and all HIV-related expenses, availability of public
health services and hospitalization for which no
provision for collecting fees from patients are made,
and any other relevant factors in making this
determination.

STATE 00128614  003.2 OF 005

b.  There is no waiver possible for this
inadmissibility; however, if the applicant is able to
demonstrate that he or she has acquired additional
insurance or funds which would be sufficient to overcome
the inadmissibility, you may determine that the
ineligibility no longer applies.

c.  On November 2, 2009, CDC issued the HIV Final Rule
removing HIV infection from the definition of
communicable disease of public health significance
effective January 4, 2010.  Although HIV infection is no
longer a ground of ineligibility under section
212(a)(1)(A)(i) of the INA, the requirement that an HIV-
positive applicant must demonstrate that he or she
overcomes inadmissibility under section 212(a)(4) of the
INA remains.

---END Text of Revised 9 FAM 40.11 N9.1-1---

¶9.  The following 9 FAM Notes and Exhibits are also
being amended to remove all references to HIV that are
no longer applicable:  9 FAM 40.6, Exhibit I; 9 FAM
40.11 Notes; 9 FAM 41.108 Notes; 9 FAM 42.66 Notes; 9
FAM 42.66, Exhibit I; and 9 FAM 42.66, Exhibit II.  As
these amendments consist mainly of deletions, they are
not being provided in this ALDAC.

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Medical Form Revisions
----------------------

¶10.  The following medical examination forms are being
revised to remove references to HIV and the sections for
the laboratory findings of the HIV test:  Form DS-2053,
Medical Examination For Immigrant or Refugee Applicant
(For use with TB Technical Instructions 1991 and the DS-
3024); Form DS-2054, Medical Examination For Immigrant
or Refugee Applicant (For use with TB Technical
Instructions 2007 and the DS-3030); and Form DS-3030,
Chest X-Ray And Classification Worksheet.  Panel
physicians should continue using the current versions of
the forms through January 3, 2010, and should begin
using the revised versions on January 4, 2010.

--------------------------------------------- -----------
-
Interim Refusals for HIV Cases between now and January
4, 2010
--------------------------------------------- -----------
-

¶11.  Until the final rule goes into effect on January 4,
2010, any HIV-positive visa applicants must still be
found ineligible to receive a visa under INA Section
212(a)(1)(A)(i).  Applicants may continue to apply for
waivers of ineligibility from DHS.  In a memorandum
(http://www.uscis.gov/USCIS/New%20Structure/L aws%20and%2
0Regulations/Memoranda/2009/HIVInadmissibilit yFinalHHSRu
le.pdf) dated November 24, 2009, DHS directed its USCIS
officers to hold in abeyance until January 4, 2010, any
waiver application which would be denied under current
law solely based on HIV infection.  That said, if the
waiver is pending, and the applicant has already filed a
waiver application which is approvable, the memorandum
instructed USCIS officers to grant those waivers so that
the cases can move forward.  Also, certain NIV
applicants will continue to benefit from the HIV Waiver
Authorization Final Rule.  Applicants may also choose to
not submit waiver requests, but rather to wait until
January 4,2010, when they will no longer be ineligible
under INA Section 212(a)(1)(A)(i).  Any such applicants
must still be refused in IVO or NIV, and posts would
overcome the refusal on or after January 4, 2010.

---------
Qs and As
---------

¶12.  Posts that receive inquiries from the public and
the press concerning the removal of HIV infection from
the definition of communicable disease of public health
significance are advised to use the following Qs and As,
which will be posted on the CA Web intranet Visa Updates
and Announcements and Content Finder sections.  On the
Travel.state.gov Visa section, the Qs and As will be
under Visa News on the right rail:

Q:  Why has it taken the United States so long to
implement changes for non-U.S. citizens who are HIV-
positive to visit or live in the United States?

-- On July 30, 2008, President Bush signed the United

STATE 00128614  004.2 OF 005

States Global Leadership Against HIV/AIDS, Tuberculosis,
and Malaria Reauthorization Act of 2008, which amended
the Immigration and Nationality Act (INA) to eliminate
language that specified HIV infection as a public health
condition that can prevent non-U.S. citizens from
entering the United States with HIV without first
obtaining a waiver from the Department of Homeland
Security (DHS).

-- The Act did not change the regulatory framework under
which HIV is handled for visa purposes.  Because HIV was
still on the U.S. Department of Health and Human
Services, Centers for Disease Control and Prevention's
(HHS/CDC) list of communicable diseases of public health
significance, HIV-positive applicants who applied for
United States visas or entry into the United States
remained inadmissible and still required waivers from
DHS.

Q:  Why is the CDC removing HIV infection from both the
definition of communicable disease of public health
significance and the scope of the medical examination
for visa purposes?

-- On July 2, 2009, CDC proposed a rule change to amend
Title 42 of the Code of Federal Regulations (CFR), Part
34, by removing HIV from the list of communicable
disease of public health significance and from the scope
of the medical examination for aliens, which was
published in the Federal Register as a Notice of
Proposed Rulemaking (NPRM) for a 45-day public comment
period.

-- The CDC reviewed all public comments it received and
published a Final Rule in the Federal Register on
November 2, 2009, which contains no changes from the
NPRM.  The final rule is effective January 4, 2010, and
it removes HIV from the definition of a communicable
disease of public health significance and references to
HIV from the scope of medical examinations for aliens.

-- The CDC determined that 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 through casual
contact.

-- We refer you to the CDC for further guidance.

Q:  How does this new regulation change the visa
application process for applicants who are HIV-positive?

-- Until the final rule goes into effect on January 4,
2010, non-U.S. citizens who are HIV-positive cannot be
admitted to the United States unless granted a waiver by
the Department of Homeland Security (DHS).  Certain
nonimmigrants may qualify for issuance of visas from
consular officers without applying to DHS for waivers
under a streamlined process established by DHS in its
HIV Waiver Final Rule.

-- Effective January 4, 2010, visa applicants required
to receive medical examinations will not be tested for
HIV, and HIV-positive visa applicants will not be found
ineligible for visas under Section 212(a)(1)(A)(i) of
the INA and will not need waivers from the Department of
Homeland Security (DHS) prior to being issued visas, if
otherwise qualified.

-- Although applicants with HIV cannot be found
ineligible for visas under Section 212(a)(1)(A)(i) of
the INA starting on January 4, 2010, they still must
overcome INA Section 212(a)(4), public charge, by
demonstrating to consular officers that they will have
means of support in the United States and that they,
therefore, will not need to seek public financial
assistance.

Q:  How will this change affect HIV-positive applicants
who have previously been refused a visa?

-- Effective January 4, 2010 applicants who were
previously refused visas only under INA Section
212(a)(1)(A)(i) and only because they were HIV positive
may be eligible for a visa.  These applicants may
reapply for a visa.  A consular officer will then
determine whether or not the applicant is qualified.

Q:  How will this change affect how applicants complete
their visa applicant forms?

The DS-156 Nonimmigrant Visa Application, DS-160 Online

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Nonimmigrant Application, and DS-230 Application for
Immigrant Visa and Alien Registration forms contain the
following question:  "Have you ever been afflicted with
a communicable disease of public health significance or
a dangerous physical or mental disorder, or ever been a
drug user or addict?"  Effective January 4, 2010, HIV-
positive visa applicants will no longer have to answer
"Yes" to this question based solely on their HIV status.
Applicants who are HIV-positive, and can otherwise
answer "No" to the question, should answer "No"
beginning on January 4, 2010.

Q:  Are there any restrictions under this new rule?

-- No.  After the final rule goes into effect on January
4, 2010, HIV-positive visa applicants will no longer be
ineligible to receive visas under Section
212(a)(1)(A)(i) of the Immigration and Nationality Act
(INA.)

Q:  How will non-US citizens with HIV find out about
this new change?

-- All U.S. embassies and consulates will disseminate
information on the final rule to the general public as
necessary.

-- Consular officers will inform any visa applicants
with HIV infection who apply for and are found
ineligible for visas between now and January 4, 2010
about the final rule.  Until January 4, 2010, visa
applicants with HIV may still apply for waivers of
ineligibly under Section 212(a)(1)(A)(i) of the INA from
DHS.  Certain nonimmigrants may qualify for visas
without first applying to DHS for waivers under a
streamlined process established by DHS in its HIV Waiver
Final Rule.  Alternatively, applicants previously
refused visas under Section 212(a)(1)(A)(i) of the INA
may opt to wait to apply for visas until January 4,
2010, when they will no longer be ineligible.

-- Additional guidance is available on CDC's website
(http://www.cdc.gov/ncidod/dq/laws_regs/fed_r eg/remove-
hiv/final-rule-hiv.htm).

Q:  Before the effective date of January 4, 2010, what
changes will take place for non-U.S. citizens with HIV
infection who wish to enter the United States?

-- Until the final rule goes into effect on January 4,
2010, non-U.S. citizens who have HIV cannot be admitted
to the United States without waivers granted by the
Department of Homeland Security (DHS).  Certain
nonimmigrants may qualify for issuance of visas from
consular officers without first applying to DHS for
waivers under a streamlined process established by DHS
in its HIV Waiver Final Rule.

Q:  Who is affected by the rule change?

-- Effective January 4, 2010, all non-U.S. citizens with
HIV who apply for visas or who apply for entry to the
United States will be affected by the final rule because
they will no longer be ineligible under Section
212(a)(1)(A)(i) of the INA.

-- Additionally, all immigrant visa applicants and
refugees and some nonimmigrant visa applicants are
required to have medical examinations prior to entrance
into the United States.  Effective January 4, 2010, they
will be affected by the final rule because it removes
HIV from the scope of medical examinations for visa
applicants, including HIV testing.

Q:  Will the rule change increase the risk that average
Americans will contract HIV?

-- The CDC has determined that allowing non-U.S.
citizens with HIV infection to enter the United States
will not pose a health risk to the American public
because HIV is preventable and not spread through casual
contact or day-to-day activities.

-- We refer you to the CDC's website
(http://www.cdc.gov/ncidod/dq/laws_regs/fed_r eg/remove-
hiv/final-rule-hiv.htm) for further information.

¶13.  Any procedural questions about this guidance should
be directed to CA/VO/F/P Rachel Hilton.

¶14.  MINIMIZE CONSIDERED.
CLINTON