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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: October 6, 2008 (Volume 73, Number 194)]
[Rules and Regulations]               
[Page 58023-58031]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc08-2]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 100 and 212

[USCBP-2007-0084; CBP Dec. 08-41]
RIN 1651-AA71

 
Issuance of a Visa and Authorization for Temporary Admission Into 
the United States for Certain Nonimmigrant Aliens Infected With HIV

AGENCY: Customs and Border Protection; DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations to provide, on a limited and categorical basis, a more 
streamlined process for nonimmigrant aliens infected with the human 
immunodeficiency virus (HIV) to enter the United States as visitors on 
temporary visas (for business or pleasure) for up to 30 days. 
Nonimmigrant aliens who do not meet the specific requirements of the 
rule or who do not wish to consent to the conditions imposed by this 
rule may elect to seek admission under current procedures and obtain a 
case-by-case determination of their eligibility for a waiver of the 
nonimmigrant visa requirements concerning inadmissibility for aliens 
who are infected with HIV.

DATES: This rule is effective on October 6, 2008.

FOR FURTHER INFORMATION CONTACT: Michael D. Olszak, Customs and Border 
Protection, Office of Field Operations, (703) 261-8424.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background and Purpose
II. The Final Rule
III. Discussion of Comments
    A. Objections to the Inadmissibility of HIV-Positive Aliens
    B. Opposition to Admission of HIV-Positive Aliens
    C. Asylees and the Required Waiver of Adjustment of Status
    D. Privacy Rights/Annotation of Visas
    E. Whether the Rule Is More Stringent Than the Existing Process
    F. Sufficient Insurance and Medication
    G. Human Rights Concerns
    H. Public Health Reasons for the Rule
    I. Disparate Treatment Applied to Contagious Diseases
    J. The 30-Day Temporary Admission Limit
    K. Extension of the Comment Period
    L. Vagueness in Criteria and Medical Expertise of Consular 
Officers
    M. Negative Impact on United States Citizens
    N. Focus on Illegal Aliens
    O. Aliens Who Are Unaware of Their HIV Status

[[Page 58024]]

    P. Appeal of Decision
    Q. Future Bar Due to Noncompliance
    R. Effect on Naturalization and Aliens From Visa Waiver 
Countries
    S. Returning Permanent Residents
IV. Statutory and Regulatory Reviews

I. Background and Purpose

    Section 212 of the Immigration and Nationality Act (INA) makes 
ineligible for admission into the United States any nonimmigrant alien 
``who is determined (in accordance with regulations prescribed by the 
Secretary of Health and Human Services) to have a communicable disease 
of public health significance.'' See INA section 212(a)(1)(A)(i); 8 
U.S.C. 1182(a)(1)(A)(i); 42 CFR 34.2.\1\ The Secretary of Homeland 
Security may authorize visa issuance and temporary admission of such 
nonimmigrants despite existing grounds of inadmissibility, subject to 
conditions prescribed by the Secretary. See INA section 212(d)(3)(A); 8 
U.S.C. 1182(d)(3)(A).
---------------------------------------------------------------------------

    \1\ At the time the proposed rule was published, INA section 
212a(1)(A)(i) specifically listed the etiologic agent that causes 
acquired immune deficiency syndrome. That language was deleted by 
the Tom Lantos and Henry J. Hyde United States Global Leadership 
Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 
2008, Public Law 110-293, section 305, 122 Stat. 2918 (July 30, 
2008). As Discussed below, however, the Department of Health and 
Human Services (HHS) regulatory text implementing the deleted 
prohibition continues to exist at the time of promulgation of this 
final rule.
---------------------------------------------------------------------------

    On December 1, 2006, the President directed the Secretaries of 
State and Homeland Security to initiate a rulemaking action to propose 
a categorical authorization to allow HIV-positive nonimmigrant aliens 
to enter the United States through a streamlined process. See White 
House, Fact Sheet: World AIDS Day 2006, (December 1, 2006), http://
www.whitehouse.gov/news/releases. On November 6, 2007, DHS published a 
notice of proposed rulemaking proposing a streamlined process for HIV-
infected nonimmigrant aliens to more easily enter the United States 
through a streamlined process. See 72 FR 62593.
    This final rule adopts the proposed amendments to the regulations 
and simplifies the process for authorization of admission with some 
modifications in light of the public comments received. Under the final 
rule, DHS will allow aliens who are HIV-positive to enter the United 
States as visitors (for business or pleasure) for a temporary period 
not to exceed 30 days, without being required to seek such admission 
under the current, more complex (individualized, case-by-case) process 
provided under the current DHS procedures.
    The current process requires the Department of State (DOS) to make 
individual recommendations to DHS, which must make a case-by-case 
evaluation and decision to authorize the issuance of the visa and the 
applicant's temporary admission. This process takes significant time. 
In fiscal year (FY) 2007, the average processing time for DHS to make 
decisions on such consular nonimmigrant recommendations (for issuance 
of visas and authorization for temporary admission) was 18 days. This 
final rule streamlines this process and will make visa authorization 
and issuance available to many aliens who are HIV-positive on the same 
day as their interview with the consular officer.

II. The Final Rule

    An alien who is HIV-positive is currently inadmissible to the 
United States under INA section 212(a)(1)(A)(i), 8 U.S.C. 
1182(a)(1)(A)(i), as implemented through 42 CFR 34.2. As more fully 
discussed in the proposed rule, such aliens have been, and are 
currently, able to apply for admission to the United States pursuant to 
INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), and applicable DHS 
regulations (8 CFR 212.4(a)), which allow the Secretary of Homeland 
Security to authorize issuance of a visa and temporary admission 
despite certain grounds for inadmissibility. 72 FR 62593, 62594-5 (Nov. 
6, 2007). These existing processes require specific, individualized 
action by DHS upon submission of eligibility information by the alien 
(the same kind of information that is required under the proposed 
regulations) that must be reviewed, evaluated, and ruled upon on a 
case-by-case basis. In contrast, the process established in this final 
rule would authorize a consular officer or the Secretary of State to 
categorically grant a nonimmigrant visa and authorize the applicant to 
apply for admission into the United States, notwithstanding an 
applicant's inadmissibility due to HIV infection, if the applicant 
meets applicable requirements and conditions, without the additional 
step of seeking review and decision by DHS prior to the granting of the 
nonimmigrant visa. This categorical authorization provides a more 
streamlined and rapid process for obtaining temporary admission under 
INA section 212(d)(3)(A)(i), 8 U.S.C. 1182(d)(3)(A)(i).
    Under current criteria for authorizing admission of otherwise 
inadmissible nonimmigrant aliens generally, DHS must take into 
consideration the risk of harm to society if the applicant is admitted 
into the United States, the seriousness of any immigration law or 
criminal law violations (if any), and the nature of the reason for 
travel. See Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). These are 
general criteria applicable to any application for authorization of a 
visa under INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A).
    DHS currently allows otherwise inadmissible aliens to apply for 
admission on a case-by-case basis by employing a balancing test 
involving several factors that incorporates the criteria required under 
Hranka (regardless of whether the authorization is applied for before a 
consular officer, the Secretary of State, or directly to DHS). As 
discussed in the proposed rule, DHS applies these criteria to HIV-
positive aliens seeking admission to the United States on a temporary 
basis by considering whether: (1) The danger to the public health from 
admission of the nonimmigrant alien is minimal; (2) the possibility of 
the transmission of the infection is minimal; and (3) any cost will be 
incurred by any level of government agency in the United States (local, 
State, or Federal) without the prior consent of that agency. Consular 
officers must find (based on evidence provided by the applicant that 
satisfies reviewing officials) that the first two factors are no more 
than minimal and that there will not be a cost to an agency absent 
prior consent.
    This final rule incorporates these criteria, as well as additional 
factors applied under current policy that were developed in a series of 
instructions from the former Immigration and Naturalization Service 
(INS) and the Department of Justice (DOJ). Nonimmigrant aliens who are 
HIV-positive who do not meet the specific circumstances of these 
clarifying instructions or who do not wish to consent to the conditions 
imposed by this rule may still elect a case-by-case determination of 
their eligibility for issuance of nonimmigrant visas and admission.
    This final rule provides an additional avenue for temporary 
admission of HIV-positive nonimmigrant aliens while minimizing costs to 
the government and the risk to public health. These goals are 
accomplished by setting requirements and conditions that govern an 
alien's admission, affect certain aspects of his or her activities 
while in the United States (e.g., using proper medication when 
medically appropriate, avoiding behavior that can transmit the 
infection), and ensure his or her departure after a short stay. This 
final rule facilitates the temporary admission to the United States of 
HIV-positive nonimmigrant aliens.

[[Page 58025]]

    This final rule is consistent with Congress' humanitarian purpose 
in enacting the limited waiver of INA section 212(d)(3)(A), 8 U.S.C. 
1182(d)(3)(A), and complies with the statute regarding aliens 
inadmissible due to health reasons by prescribing ``conditions * * * to 
control and regulate the admission and return of inadmissible aliens 
applying for temporary admission.'' INA section 212(d)(3)(A), 8 U.S.C. 
1182(d)(3)(A). Thus, under the final rule, an HIV-positive applicant 
for a nonimmigrant visitor visa would be required to satisfy criteria 
designed to ensure that the risk to the public health is minimized to 
the greatest reasonable extent and that no cost will be imposed on any 
level of government in the United States (local, State, or Federal). 
The short duration of admission under the amended regulation, and the 
various conditions designed to control the alien's temporary stay and 
ensure his or her return (departure from the United States), minimize 
the risk of disease transmission in the United States, as well as the 
risk of increased burden on our public health resources. HIV-positive 
aliens not meeting the criteria under the amended regulation would 
still be able to seek individualized (case-by-case) consideration for 
admission pursuant to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), 
under current DHS policy. See 8 CFR 212.4(a) or (b).
    The final rule includes specific requirements (based in large part 
on the existing criteria) discussed in the proposed rule. 72 FR at 
62595-6. After consultation with the HHS' Centers for Disease Control 
and Prevention, and National Institutes of Health, and careful 
consideration of the comments received from the public on the proposed 
rule, DHS has determined not to change the criteria relating to medical 
etiology, personal understanding, limited potential health danger, 
continuity of health care, temporary admission, general enforcement, 
and general duration. DHS has made several modifications in light of 
the public comments, as discussed more fully below.
    Several commenters questioned whether it was appropriate to impose 
a waiver of adjustment of status pursuant to a grant of asylum under 
INA section 208, 8 U.S.C. 1158. After further consideration, DHS agrees 
that asylees have continued eligibility for permanent resident status; 
therefore, under the final rule, an alien who has been granted asylum 
after having been admitted pursuant to the proposed categorical 
authorization will have continued eligibility to apply to adjust status 
under the asylum statute and regulations. However, nothing within the 
rule exempts the alien from the requirement that the alien establish 
his or her eligibility to adjust under INA section 209, 8 U.S.C. 1159. 
Specifically, nothing within this rule waives any of the requirements 
for adjustment of status including, but not limited to, the 
requirements in 8 CFR part 209.
    Additionally, the short duration raised a number of questions about 
extensions. After further consideration, DHS has decided to permit an 
additional period or periods of satisfactory departure in exigent 
circumstances under a provision modeled after the Visa Waiver Program. 
See 8 CFR 212.4(f)(5) of this final rule.
    Some commenters questioned whether aliens who receive this visa 
authorization will receive visas that identify them as HIV-positive. 
The visa will not be annotated in a manner that would allow the public 
to identify the alien as HIV-positive.
    This final rule does not create the provision for temporary 
admission of HIV-positive aliens; such a provision exists in statute 
and regulation. This rule merely provides an alternative, quicker 
process for obtaining admission to the United States under INA section 
212(d)(3)(A)(i) 8 U.S.C. 1182(d)(3)(A)(i).\2\
---------------------------------------------------------------------------

    \2\ The final rule adopts, without change, the technical 
amendments to 8 CFR 212.4(e).
---------------------------------------------------------------------------

III. Discussion of Comments

    The proposed rule solicited public comments over a 30-day comment 
period. DHS received over 700 comments.

A. Objections to the Inadmissibility of HIV-Positive Aliens

    By far the most numerous of all the comments are those objecting to 
the inadmissibility of HIV-positive aliens. Many of these commenters 
objected to the proposed rule's process and called for repeal of the 
governing statute's ban on HIV-positive aliens for various reasons, 
including the following: It is unnecessary and ineffective to protect 
the American public; it is discriminatory; it is unconstitutional; it 
is outdated and does not reflect current medical science. Others among 
these commenters expressed approval of the proposed process to 
streamline temporary admission for these aliens as a first step but 
also stated that the rule does not go far enough to make it easier for 
these aliens to travel to the United States. These latter commenters 
called also for the repeal of the statute's HIV admission ban as a next 
step. One commenter suggested that the United States mirror Australia's 
approach to admitting HIV-positive aliens (described only as less 
restrictive). Several commenters stated that international AIDS 
conferences are not held in the United States as a result of the 
inadmissibility of HIV-positive aliens.
    Some commenters objected to the governing statute's inadmissibility 
provision that imposes the travel and immigration ban on HIV-positive 
aliens and to the proposed rule which, they claimed, creates the 
impression that the alleged discriminatory statute can be mitigated by 
the proposed process for temporary admission of these aliens. Some 
comments called upon the Secretary of Homeland Security and the 
President to withhold publication of a final rule and support repeal of 
the statute that imposes this inadmissibility.
    Repeal of the statutory inadmissibility provision (the admission 
ban) applicable to HIV-positive aliens is within the province of 
Congress as a matter of law, and the President recently signed 
legislation that removes from applicable law the language requiring 
that HIV must be included in the list of communicable diseases of 
public health significance. See Public Law 110-293, 122 Stat. 2918 
(July 30, 2008). The INA, as amended, makes inadmissible to the United 
States any alien ``who is determined (in accordance with regulations 
prescribed by the Secretary of Health and Human Services) to have a 
communicable disease of public health significance * * *'' INA section 
212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i). Although Public Law 110-293 
eliminates the requirement that HIV be included in the list of 
communicable diseases of public health significance (as defined at 42 
CFR 34.2), HIV remains on that list until HHS amends its regulation. 
See 42 CFR 34.2. HHS has indicated its intention to do so by 
rulemaking; pending such action, any alien who is HIV-positive is still 
inadmissible to the United States.
    This regulation will permit short-term admission while HHS 
completes a rulemaking to remove HIV from the list of communicable 
diseases of public health significance. 42 CFR 34.2.

B. Opposition to Admission of HIV-Positive Aliens

    A few commenters expressed objection to admission of HIV-positive 
aliens under the discretionary authority provision of the governing 
statute and urged its repeal.
    In the statute that imposed the ban on admission of aliens with 
communicable diseases of public health significance, Congress also 
provided for the

[[Page 58026]]

discretionary exercise of authority to admit these aliens (among 
others) for a temporary period under certain circumstances. INA section 
212(d)(3)(A), 8 U.S.C 1182(d)(3)(A). Congress restricted the 
availability of this discretionary authority by precluding its 
application to aliens who are inadmissible due to several of the 
security and related grounds; Congress imposed no such restriction on 
aliens inadmissible on other grounds, including health-related reasons. 
Also, Congress has made available a waiver of inadmissibility for 
immigrants seeking admission to the United States who are inadmissible 
due to a communicable disease listed by HHS. INA sections 209(c) and 
212(g), 8 U.S.C. 1159(c) and 1182(g).
    This rule does not create a new regulatory provision allowing HIV-
positive aliens to enter the United States temporarily; the rule merely 
provides an alternative process in the regulations to streamline 
issuance of nonimmigrant visas to, and the temporary admission of, HIV-
positive aliens under existing statutory authority within the 
Secretary's discretion. While the existing process provides for case-
by-case authorization (by DHS) for issuing visas and authorizing 
temporary admission, the authorization process provided in this rule is 
categorical, i.e., authorization is granted through this rulemaking to 
any alien applicant who meets the requirements and conditions. The 
Secretary may exercise his discretion by rulemaking rather than on a 
case-by-case basis and is doing so here. Lopez v. Davis, 531 U.S. 230, 
243-44 (2001) (quoting American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 
(1999)) (emphasis added); Yang v. INS, 79 F.3d 932, 936 (9th Cir.), 
cert. denied, 519 U.S. 824 (1996).
    The final rule contains several requirements to minimize to the 
greatest reasonable extent public health risks and risk of cost to any 
agency of any level of government in the United States. The final rule 
also imposes conditions to control and regulate the admission and 
return (to their home countries) of beneficiaries of the categorical 
authorization.

C. Asylees and the Required Waiver of Adjustment of Status

    Several commenters objected to the requirement of the proposed rule 
that an applicant must waive his right to file for an adjustment of 
status to that of lawful permanent resident if he applied for and was 
granted asylum in the United States. Some commenters objected also to 
the requirement that an applicant must waive his right to file, after 
entering the United States under the proposed categorical 
authorization, an application for a change of nonimmigrant status or 
extension of stay.
    DHS agrees that asylees obtain a special status under INA section 
208, 8 U.S.C. 1158, that, where possible, should be recognized 
consistently. Therefore, DHS has modified the adjustment of status 
waiver in the final rule to clarify that applicants for the categorical 
authorization will not be required to waive the opportunity to apply 
for adjustment of status should they be granted asylum after entering 
the United States via the categorical process. The final rule will 
retain the required waivers relating to change of nonimmigrant status, 
extension of stay, and adjustment of status other than through the 
asylum process. Any alien who is unwilling to agree to these waivers 
may apply for temporary admission under the existing process of 8 CFR 
212.4(a) which is not conditioned on the making of these waivers. 
However, this waiver is for admission as a nonimmigrant. These visas 
are not available for aliens who intend to stay permanently in the 
United States as immigrants. Aliens seeking permanent resident status 
must apply for immigrant visas and fulfill the requirement for 
immigrants set out in the INA.

D. Privacy Rights/Annotation of Visas

    Many commenters expressed concern about the privacy of applicants 
for the proposed categorical authorization. Primarily, the concern 
relates to whether the alien's visa (included within his or her 
passport) would be annotated to indicate admission under the rule's 
categorical authorization process. These commenters emphasized the 
stigma attached to HIV status and the risk that annotation could 
subject these aliens to discrimination. Some of these commenters 
expressed privacy concerns relative to a DHS database for HIV-positive 
aliens.
    Some commenters questioned whether aliens who receive this visa 
authorization will receive visas that identify them as HIV-positive. 
The visa will not be annotated in a manner that would allow the public 
to identify the alien as HIV-positive.
    Section 222(f) of the INA, 8 U.S.C. 1202(f), provides that DOS 
records pertaining to visa issuance or refusal are confidential, and 
shall be used only for the formulation, amendment, administration, or 
enforcement of the immigration and other laws of the United States, 
with exceptions not relevant here. These confidentiality provisions 
serve to protect disclosures made as part of an application for a 
nonimmigrant visa by an alien who is HIV-positive. Moreover, under the 
final rule's categorical authorization process, unlike the existing 
process, there is no need for DHS to make case-by-case determinations 
on individual recommendations from the DOS. DHS will necessarily create 
the same records relative to aliens receiving authorization for visa 
issuance under the process (e.g., electronic records), as DHS normally 
creates for all aliens with visas who gain temporary admission as 
nonimmigrants. DHS will not maintain a separate database of aliens who 
are admitted under the categorical authorization process.
    DOS scrupulously adheres to the statutory requirement regarding the 
confidentiality of information submitted during the consular interview 
process. Record information on applicants will be maintained by the DOS 
in accordance with confidentiality and security requirements, as well 
as any DOS System of Records Notices and Privacy Impact Assessments 
relative to any applicable systems covering this data collection.

E. Whether the Rule Is More Stringent Than the Existing Process

    Many commenters contended that the requirements and conditions of 
the proposed process make it more stringent than the existing process. 
These commenters therefore questioned that it is a ``streamlined'' 
process. Some recommended simplifying the process. One commenter 
suggested that DHS not make any change to the regulations, leaving the 
existing case-by-case process as the sole option.
    The characterization of the categorical authorization process under 
the proposed rule and this final rule as ``streamlined'' refers to the 
fact that the process, unlike the existing process, does not require 
the alien's application for a visa and temporary admission to be 
submitted to DHS with the consular officer's recommendation. Under the 
existing process, DHS must make a case-by-case evaluation and decision 
to authorize the issuance of the visa and the applicant's temporary 
admission. This step in the process necessarily takes time. In FY 2007, 
the average DHS processing time for all consular nonimmigrant 
recommendations (for issuance of visas and authorization for temporary 
admission) was 18 days. The categorical authorization process under 
this final rule does not require that step, and, therefore, the rule is 
less cumbersome and permits consular officers to issue visas on the 
same day

[[Page 58027]]

the alien applies for the visa in many cases. The process is, 
therefore, more streamlined.
    DHS is authorizing issuance of visas and temporary admission on a 
categorical basis only to those aliens who meet the rule's specific 
requirements and conditions. An alien may choose to apply for temporary 
admission under the existing case-by-case decision process if he or she 
wishes.
    The existing process also imposes conditions that an applicant must 
meet to gain temporary admission, many of which are the same or similar 
to the conditions of this final rule's process. The conditions of the 
existing process have been developed through adjudication (see Matter 
of Hranka, 16 I&N Dec. 491 (BIA 1978)) and several instructions issued 
by the former INS. With this final rule, DHS is consolidating into one 
transparent source, the conditions and instructions applicable to HIV-
positive aliens who wish to apply for categorical authorization for 
admission to the United States; the same conditions that have 
historically governed discretionary temporary admission under INA 
section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). The process implemented 
under this final rule retains the same evidentiary requirements as the 
existing process while providing an alternative to the case-by-case 
review by DHS that is required under the existing regulation. The rule, 
however, adds restrictions on application for extension of stay, change 
of nonimmigrant status, and adjustment of status to that of permanent 
resident (other than through asylum). These restrictions are necessary 
to control the admission and return of these aliens since DHS is not 
performing a case-by-case review.

F. Sufficient Insurance and Medication

    Many commenters objected to the requirement in the proposed rule (8 
CFR 212.4(f)(2)(v)), that an alien admitted under the proposed process 
for categorical authorization have possession of or access to an 
adequate supply of antiretroviral drugs (if medically appropriate) for 
the length of anticipated stay, and sufficient assets, such as medical 
insurance, to cover any medical care that may be necessary while in the 
United States. Some of these commenters mentioned that an alien may not 
have insurance or enough money to cover a medical event, some referring 
particularly to aliens from poor countries. Others questioned how an 
alien could establish adequate assets, some referring again to aliens 
from poor or third world countries. Still others asked about 
unanticipated expenses, and objected to requiring assets for these 
expenses. Lastly, several commenters suggested that this rule is racist 
because HIV-positive populations from developing countries are less 
likely to have access to medication and medical insurance.
    The requirement to demonstrate availability of assets, such as 
through proof of insurance, is a reasonable condition meant to ensure 
that the applicant's short-term visit will not cause a financial burden 
to the American public and that there will be no cost to any agency of 
the United States without that agency's prior consent. An alien who is 
likely to become a public charge is inadmissible to the United States 
under INA section 212(a)(4), 8 U.S.C. 1182(a)(4). The totality of 
circumstances must be considered in determining whether or not a person 
is likely to become a public charge. The requirement that an alien 
possess an adequate supply of medication (if medically appropriate), or 
have access to such a supply in the United States, would reduce this 
risk. DHS is aware that prescribed medication is not always necessary; 
the treatment protocol is determined by the patient's medical service 
provider. As with other medical determinations for visa purposes, the 
appropriateness of the alien's treatment protocol is subject to review 
by DOS' panel physicians. The requirement that the applicant not 
currently be exhibiting symptoms of an active, contagious infection 
with AIDS is also relevant to this determination.
    Another consideration in deciding whether to exercise discretion 
favorably for an applicant for categorical authorization is whether any 
cost will be incurred by any agency of the United States (including 
State and local government) without that agency's prior written 
consent. Thus, applicants who do not have sufficient assets to cover 
the cost of their stay will not benefit from this new provision. Any 
written offer by a United States agency to provide medication and/or 
funding that is adequate for the applicant's travel will be considered 
a favorable factor. Any credible offer from any other financially 
stable source to provide medication and/or funding that is adequate for 
the applicant's travel will also be considered a favorable factor. In 
addition, the nature and duration of the applicant's travel plan and 
his or her present health are factors for consideration.
    An applicant may establish that resources are available to cover 
medical expenses through several means. First, some medical facilities 
are operated by State or Federal agencies and, as a matter of policy, 
do not make provisions for collecting fees from patients accepted for 
treatment. If an applicant establishes, through documentation provided 
by a medical facility, that the facility has agreed to provide the 
applicant services without reimbursement, or that its free services are 
available to the applicant or to similarly situated persons (such as 
nonimmigrant aliens) without specific mention of the applicant, the 
applicant is eligible for visa issuance and temporary admission even if 
the facility is supported by public funds.
    An applicant may have sufficient personal assets to cover 
anticipated treatment. The assets must be available in the United 
States within the time frame required for payment by the medical 
facility. Assets can be established by commonly available 
documentation. Sponsors (individuals or organizations) may offer to 
cover potential medical expenses. Such sources should be able to 
provide documentation of intent and capability to provide that 
coverage. Finally, short-term medical trip insurance may be available 
to cover medical costs that the applicant may incur during the 
relatively short (30-day) period of admission. In every instance above, 
the applicant must, and should be able to, satisfy the consular officer 
that assets will be available within the United States to cover 
anticipated expenses. Again, an alien may seek admission under the 
existing process if he is unwilling or unable to meet the conditions of 
this final rule's process. The existing process, through the consular 
officer interview and DHS review, involves many similar requirements 
relating to the applicant's health and ability to cover expenses.
    Regarding unanticipated medical expenses, the likelihood of such 
expenses is judged by the totality of circumstances in each applicant's 
case. Offers of support from individuals and organizations, as well as 
personal assets, will be given consideration.
    DHS and DOS will make every effort to ensure that these regulations 
are applied consistently without regard to inappropriate 
considerations, such as an applicant's race.

G. Human Rights Concerns

    Some commenters pointed out that the United States is one of only a 
few countries in the world that restricts travel for those who are HIV-
positive. These commenters contended that this is a violation of basic 
human rights (to travel) and that DHS and HHS should remove HIV 
infection from the list of

[[Page 58028]]

contagious diseases of public health significance.
    As discussed in the proposed rule, historically, Congress clearly 
expressed its intent that HIV infection be listed as a communicable 
disease of public health significance in enacting a statute to that 
effect. Because Public Law 110-293 eliminated a mandatory listing from 
the INA, HHS has indicated that it is beginning the process of removing 
HIV from the list of communicable diseases of public health 
significance by rulemaking. However, while that process is developing, 
through rulemaking, DHS is providing a streamlined process for these 
aliens to be granted temporary admission into the United States as an 
immediate interim option, pending HHS's plan to remove HIV from the 
list of communicable diseases of public significance.

H. Public Health Reasons for the Rule

    Several commenters contended that the proposed process, with its 
requirements and conditions, is not supported by medical science, i.e., 
that the need for the limitations in admitting HIV-positive aliens is 
not based on sound public health reasons.
    The final rule's process was developed in consultation with HHS's 
Centers for Disease Control and Prevention and National Institutes of 
Health. DHS relied on those knowledgeable agencies to provide input 
based on current science. HHS continues to list HIV as a communicable 
disease of public health significance and DHS must continue to apply 
the statutory provisions regarding inadmissibility and discretionary 
authority for temporary admission in a manner appropriate to safeguard 
the public from what is still recognized under the current statute and 
regulation as a disease of public health significance.

I. Disparate Treatment Applied to Contagious Diseases

    A few commenters contended that the statutes and regulations 
pertaining to inadmissibility, discretionary authorization, and process 
that limit admission to the United States treat HIV infection 
differently than other communicable diseases, including sexually 
transmitted diseases (STDs). These commenters questioned the rationale 
for this disparate treatment and contended that the statute 
discriminated against aliens who are HIV-positive.
    When the statute treated HIV infection (whether or not it is 
considered a STD) as a communicable disease of public health 
significance that disqualifies a carrier of the disease from admission 
to the United States (subject to exception), DHS utilized a lengthy 
detailed process for determining whether to grant temporary admission. 
Accordingly, DHS proposed an alternative, streamlined process for HIV-
positive aliens to be granted temporary admission into the United 
States pending completion of HHS rulemaking.
    The HHS list does not cover all communicable diseases, but HHS is 
charged with the responsibility and has the expertise to make 
distinctions. Some diseases are on the list, including some STDs (HIV, 
gonorrhea), while others are not. That a given disease is placed on the 
list while others are not is not, by itself, evidence of 
discrimination, nor does it show that the disease is wrongfully on the 
list. Other non-STDs covered include leprosy (infectious) and 
tuberculosis (active). Other STDs covered include chancroid, granuloma 
inguinale, lymphogranuloma vereneum, and syphilis (infectious stage). 
As HIV remains on the HHS list pending further action, publishing a 
final rule to put into place a streamlined process for temporary 
admission is appropriate.

J. The 30-day Temporary Admission Limit

    A few commenters objected to the 30-day limit imposed by the rule 
for HIV-positive aliens entering the United States under the rule's 
categorical authorization process. These commenters contended that this 
period is needlessly short.
    DHS has previously granted blanket authorizations under INA section 
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), for specific, limited purposes, 
such as to permit HIV-positive aliens to attend particular events, 
including the Salt Lake City Olympic games, the United Nations General 
Assembly Special Session on HIV/AIDS in 2001, various Universal 
Fellowship of Metropolitan Community Churches events, and the 2006 Gay 
Games in Chicago. Since 1990, aliens who are HIV-positive have rarely 
been given blanket authorizations for an admission of greater than 10 
days. This new process will allow admissions for up to 30 days, which 
is in line with 30-day admissions often authorized under the 
individualized, case-by-case process.
    The final rule describes a new (alternative) option for 
nonimmigrant aliens with HIV who wish to enter the United States in B-
1/B-2 status for periods of time that do not exceed 30 days (but a 
provision for authorization of satisfactory departure in exigent 
circumstances is included in this final rule). Moreover, the final rule 
authorizes two applications for admission during the 12-month period of 
the visa validity. This reasonable condition of visa issuance and 
admission to the United States applies to the majority of nonimmigrants 
traveling to the United States (regardless of particular nonimmigrant 
status). For those who anticipate traveling in other nonimmigrant 
categories or for longer than 30 days, the processes described in 8 CFR 
212.4(a) and (b) remain available.
    Moreover, many of the admissions under the existing process for 
HIV-positive aliens have been more narrowly limited to periods 
corresponding to a particular event in the United States, such as a 
seminar or convention. Typically, these admissions have been for less 
than 30 days. Admission under the existing discretionary authorization 
process also has been more restrictive for nonimmigrant aliens seeking 
to enter the United States for general tourism purposes. In these 
respects, the final rule's process is more advantageous to HIV-positive 
aliens seeking to enter the United States.
    However, DHS recognizes that emergencies do occur and, accordingly, 
has added to this final rule a provision for authorizing an additional 
period or periods of stay, as appropriate and as deemed necessary by 
appropriate DHS officials, where an alien admitted under the final 
rule's process experiences exigent circumstances that prevent his or 
her departure from the United States. This provision is modeled after 
the ``satisfactory departure'' provision under the Visa Waiver Program 
regulations. 8 CFR 217.3(a); see 8 CFR 212.4(f)(5) as adopted in this 
final rule.

K. Extension of the Comment Period

    A few commenters requested additional time to file comments on the 
proposed rule.
    The comment period was open for 30 days, and over 700 persons 
submitted comments. The comments submitted come from a wide variety of 
persons and appear to cover a wide breadth of relevant issues and 
objections. DHS concludes that there was adequate opportunity for 
public participation and does not see the need to extend the comment 
period.

L. Vagueness in Criteria and Medical Expertise of Consular Officers

    One commenter stated that the criteria of the rule's categorical 
authorization process that must be met are vague and cannot be 
administered consistently because consular officers are not able to 
assess the medical conditions the proposal vaguely puts forward. 
Similarly, four commenters suggested

[[Page 58029]]

that consular officers are not trained to handle medical issues.
    DHS disagrees. DOS has extensive experience processing applications 
under the existing HIV authorization process. In order to ensure 
consistent application of the criteria, DOS has issued specific 
instructions to consular officers regarding how to evaluate 
applications for admission to the United States, including medical 
issues such as those in question. In addition, consular officers may 
consult with panel physicians to assist with medical issues when 
necessary.

M. Negative Impact on United States Citizens

    One commenter stated that the proposal would have a negative effect 
on United States citizens.
    DHS disagrees with this comment. This rule only affects 
nonimmigrant alien visitors to the United States and has no direct 
effect on United States citizens.

N. Focus on Illegal Aliens

    One commenter suggested that DHS should focus its resources on the 
illegal alien population in the United States.
    DHS is committed to enforcing the laws within its purview, 
including those laws that relate to illegal immigration and those laws 
that relate to public health concerns.

O. Aliens Who Are Unaware of Their HIV Status

    One commenter suggested that DHS should focus its resources on 
those aliens seeking admission to the United States who are not yet 
aware that they are HIV-positive. Another commenter suggested that DHS 
focus on education and the prevention of AIDS.
    In order to determine whether undiagnosed nonimmigrant aliens are 
HIV-positive, a medical examination would be required for all 
nonimmigrant visa applicants. DHS is not proposing to require such an 
examination as part of this rulemaking. However, the U.S. government is 
committed to preventing the global spread of AIDS through education and 
other measures.

P. Appeal of Decision

    One commenter objected because the proposed regulation does not 
specifically provide for appeal of a consular officer's decision. If an 
alien is denied a visa and temporary admission under the rule's 
process, he or she may seek admission under the existing process for a 
case-by-case determination of eligibility.

Q. Future Bar Due to Noncompliance

    One commenter contended that an alien who fails to comply with a 
condition of admission under the final rule's process should not be 
barred from seeking authorization under the process in the future.
    DHS disagrees and believes that this is a reasonable condition to 
ensure that nonimmigrant aliens comply with the conditions for 
admission under this rule's process. In addition, an alien who is 
ineligible for authorization under these regulations because he or she 
has previously failed to comply with a condition for admission, or for 
other reasons, can still seek authorization under the existing case-by-
case process. This is similar to the restriction of previous violators 
of the Visa Waiver Program (VWP) from being able to use the VWP program 
again for admission. See INA section 217(a)(7), 8 U.S.C. 1187(a)(7). In 
both of these situations, the violator may still apply for a visa; he 
or she is only barred from using the streamlined process of this 
regulation or VWP, respectively.

R. Effect on Naturalization and Aliens from Visa Waiver Countries

    One commenter expressed concern regarding the effect of the 
proposed regulations on a permanent resident's ability to become a 
United States citizen. Several commenters expressed concern regarding 
the effect of the proposed regulations on travelers from visa waiver 
countries.
    The rule's process does not affect the eligibility of a permanent 
resident to qualify for naturalization. In addition, these regulations 
do not change eligibility for aliens seeking admission to the United 
States under the Visa Waiver Program.

S. Returning Permanent Residents

    One commenter objected that an HIV-positive alien with permanent 
resident status could never travel outside the United States because he 
would not be allowed to return.
    An alien with status as a permanent resident of the United States 
who travels temporarily outside the United States and returns is not 
considered to be applying for admission for immigration purposes unless 
one of the six conditions delineated in INA section 101(a)(13)(C), 8 
U.S.C. 1101(a)(13)(C), apply. Therefore, absent any of one of the six 
conditions, a permanent resident alien who travels outside the United 
States will not be subject to any of the grounds of inadmissibility 
found at INA section 212(a), 8 U.S.C. 1182(a). If one of the six 
conditions applies, the permanent resident alien is subject to any 
applicable ground of inadmissibility.

IV. Statutory and Regulatory Reviews

A. Administrative Procedure Act

    The Administrative Procedure Act, 5 U.S.C. 553(d), generally 
requires that a final rule becomes effective no less than 30 days from 
the date of publication. Rules that grant or recognize an exception or 
relieve a restriction, however, can be made effective immediately upon 
publication. This rule does not add new requirements or restrictions; 
instead it codifies existing criteria for nonimmigrant aliens infected 
with HIV to obtain a short-term visa authorization. This final rule 
also removes certain procedural obstacles in the process and provides a 
more streamlined procedure for HIV-positive aliens to seek admission 
into the United States. DHS therefore believes that this rule relieves 
current restrictions on the admissibility to the United States of HIV-
positive nonimmigrant aliens. Accordingly, this final rule will become 
effective immediately upon publication in the Federal Register.

B. Regulatory Flexibility Act

    DHS has reviewed the final rule in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), and, by approving it, certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. The individual non-immigrant 
aliens to whom this rule applies are not small entities as that term is 
defined in 5 U.S.C. 601(6). Thus, the RFA does not apply.

C. Unfunded Mandates Reform Act of 1995

    The final rule will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Executive Order 12866

    This rule has been determined to be a significant regulatory action 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review. There are no new costs to the 
public associated with this rule. This rule does not create any new or 
additional requirements.

[[Page 58030]]

E. Executive Order 13132

    The final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

F. Executive Order 12988

    The final rule meets the applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to OMB, for review and approval, any 
reporting and recordkeeping requirements inherent in a rule. This rule 
does not impose any new reporting or recordkeeping requirements under 
the Paperwork Reduction Act.

List of Subjects

8 CFR Part 100

    Organization and functions (Government agencies).

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas.

Amendments to the Regulations

0
For the reasons stated in the preamble, parts 100 and 212 of chapter I 
of title 8 of the Code of Federal Regulations (8 CFR parts 100 and 212) 
are amended as follows:

PART 100--STATEMENT OF ORGANIZATION

0
1. The general authority citation for part 100 continues to read as 
follows:

    Authority: 8 U.S.C. 1103; 8 CFR part 2.


Sec.  100.7  [Amended]


0
2. Section 100.7 is amended by removing the citation ``212.4(g)'' in 
the list of parts and sections and replacing it with the citation 
``212.4(h)''.

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
3. The general authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209 
of Pub. L. 108-458).


0
4. Section 212.4 is amended by:
0
a. In paragraph (e), removing the citation ``212(a)(1)'' the first time 
it appears and replacing it with ``212(a)(1)(A)(iii)'', and removing 
the citation ``212(a)(1) of the Act'' and replacing it with 
``212(a)(1)(A)(iii)(I) or (II) of the Act due to a mental disorder and 
associated threatening or harmful behavior'';
0
b. Redesignating paragraphs (f), (g), (h), and (i) as paragraphs (g), 
(h), (i), and (j) and adding new paragraph (f) to read as follows:


Sec.  212.4  Applications for the exercise of discretion under section 
212(d)(1) and 212(d)(3).

* * * * *
    (f) Inadmissibility under section 212(a)(1) for aliens inadmissible 
due to HIV.
    (1) General. Pursuant to the authority in section 212(d)(3)(A)(i) 
of the Act, any alien who is inadmissible under section 212(a)(1)(A)(i) 
of the Act due to infection with the etiologic agent for acquired 
immune deficiency syndrome (HIV infection) may be issued a B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa by a 
consular officer or the Secretary of State, and be authorized for 
temporary admission into the United States for a period not to exceed 
30 days, subject to authorization of an additional period or periods 
under paragraph (f)(5) of this section, provided that the authorization 
is granted in accordance with paragraphs (f)(2) through (f)(7) of this 
section. Application under this paragraph (f) may not be combined with 
any other waiver of inadmissibility.
    (2) Conditions. An alien who is HIV-positive who applies for a 
nonimmigrant visa before a consular officer may be issued a B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa and 
admitted to the United States for a period not to exceed 30 days, 
provided that the applicant establishes that:
    (i) The applicant has tested positive for HIV;
    (ii) The applicant is not currently exhibiting symptoms indicative 
of an active, contagious infection associated with acquired immune 
deficiency syndrome;
    (iii) The applicant is aware of, has been counseled on, and 
understands the nature, severity, and the communicability of his or her 
medical condition;
    (iv) The applicant's admission poses a minimal risk of danger to 
the public health in the United States and poses a minimal risk of 
danger of transmission of the infection to any other person in the 
United States;
    (v) The applicant will have in his or her possession, or will have 
access to, as medically appropriate, an adequate supply of 
antiretroviral drugs for the anticipated stay in the United States and 
possesses sufficient assets, such as insurance that is accepted in the 
United States, to cover any medical care that the applicant may require 
in the event of illness at any time while in the United States;
    (vi) The applicant's admission will not create any cost to the 
United States, or a state or local government, or any agency thereof, 
without the prior written consent of the agency;
    (vii) The applicant is seeking admission solely for activities that 
are consistent with the B-1 (business visitor) or B-2 (visitor for 
pleasure) nonimmigrant classification;
    (viii) The applicant is aware that no single admission to the 
United States will be for a period that exceeds 30 days (subject to 
paragraph (f)(5) of this section);
    (ix) The applicant is otherwise admissible to the United States and 
no other ground of inadmissibility applies;
    (x) The applicant is aware that he or she cannot be admitted under 
section 217 of the Act (Visa Waiver Program);
    (xi) The applicant is aware that any failure to comply with any 
condition of admission set forth under this paragraph (f) will 
thereafter make him or her ineligible for authorization under this 
paragraph; and
    (xii) The applicant, for the purpose of admission pursuant to 
authorization under this paragraph (f), waives any opportunity to apply 
for an extension of nonimmigrant stay (except as provided in paragraph 
(f)(5) of this section), a change of nonimmigrant status, or adjustment 
of status to that of permanent resident.
    (A) Nothing in this paragraph (f) precludes an alien admitted under 
this paragraph (f) from applying for asylum pursuant to section 208 of 
the Act.
    (B) Any alien admitted under this paragraph (f) who applies for 
adjustment of status under section 209 of the Act after being granted 
asylum must establish his or her eligibility to adjust status under all 
applicable provisions of the Act and 8 CFR part 209. Any applicable 
ground of inadmissibility must be waived by approval of an appropriate 
waiver(s) under section 209(c) of the Act and 8 CFR 209.2(b).

[[Page 58031]]

    (C) Nothing within this paragraph (f) constitutes a waiver of 
inadmissibility under section 209 of the Act or 8 CFR part 209.
    (3) Nonimmigrant visa. A nonimmigrant visa issued to the applicant 
for purposes of temporary admission under section 212(d)(3)(A)(i) of 
the Act and this paragraph (f) may not be valid for more than 12 months 
or for more than two applications for admission during the 12-month 
period. The authorized period of stay will be for 30 calendar days 
calculated from the initial admission under this visa.
    (4) Application at U.S. port. If otherwise admissible, a holder of 
the nonimmigrant visa issued under section 212(d)(3)(A)(i) of the Act 
and this paragraph (f) is authorized to apply for admission at a United 
States port of entry at any time during the period of validity of the 
visa in only the B-1 (business visitor) or B-2 (visitor for pleasure) 
nonimmigrant categories.
    (5) Admission limited; satisfactory departure. Notwithstanding any 
other provision of this chapter, no single period of admission under 
section 212(d)(3)(A)(i) of the Act and this paragraph (f) may be 
authorized for more than 30 days; if an emergency prevents a 
nonimmigrant alien admitted under this paragraph (f) from departing 
from the United States within his or her period of authorized stay, the 
director (or other appropriate official) having jurisdiction over the 
place of the alien's temporary stay may, in his or her discretion, 
grant an additional period (or periods) of satisfactory departure, each 
such period not to exceed 30 days. If departure is accomplished during 
that period, the alien is to be regarded as having satisfactorily 
accomplished the visit without overstaying the allotted time.
    (6) Failure to comply. No authorization under section 
212(d)(3)(A)(i) of the Act and this paragraph (f) may be provided to 
any alien who has previously failed to comply with any condition of an 
admission authorized under this paragraph.
    (7) Additional limitations. The Secretary of Homeland Security or 
the Secretary of State may require additional evidence or impose 
additional conditions on granting authorization for temporary 
admissions under this paragraph (f) as international (or other 
relevant) conditions may indicate.
    (8) Option for case-by-case determination. If the applicant does 
not meet the criteria under this paragraph (f), or does not wish to 
agree to the conditions for the streamlined 30-day visa under this 
paragraph (f), the applicant may elect to utilize the process described 
in either paragraph (a) or (b) of this section, as applicable.

Michael Chertoff,
Secretary.
[FR Doc. E8-23287 Filed 10-3-08; 8:45 am]
BILLING CODE 9111-14-P




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