The Exclusion of HIV-Positive Immigrants Under the Nicaraguan Adjustment and Central American Relief Act and the Haitian Refugee Immigration Fairness Act, Statutory interpretation, Communicable disease, Public health, Legislative intent

The United States has turned away immigrants infected with the human immunodeficiency virus (“HIV”) under the public health exclusion of the Immigration and Nationality Act (“INA”) since the mid-1980’s. Since Congress codified the HIV exclusion in 1993, any alien applying for an immigrant or nonimmigrant visa, adjustment of status to lawful permanent resident, or refugee status must first have a blood test for HIV. The HIV exclusion is not absolute, however. Each HIV-positive alien can apply for one of two waivers of the HIV exclusion that are available in the INA. When an alien applies for immigrant or permanent resident status, he must disclose his HIV status on the application and, if he is HIV-positive, may simultaneously apply for a waiver of the exclusion. The first waiver, available to general immigrants under the INA, requires the immigrant to have an immediate family member in the United States who is a citizen or lawful permanent resident. The idea behind this requirement is that family members will help to care, financially and otherwise, for HIV-positive relatives, thus relieving the financial burden on the government. The second waiver, available for “special” immigrants such as refugees, gives the Attorney General discretion to waive the exclusion “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” In other words, this humanitarian waiver is reserved for groups of immigrants whom Congress allows into the United States for humanitarian reasons. Which of the two waivers an immigrant can apply for depends on what type of immigration status he is seeking, because different waivers are available for aliens applying under various sections of the INA. When a new immigration law is enacted, Congress or the Immigration and Naturalization Service (“INS”) must decide which waiver should be available to HIV-positive immigrants applying under the new provision.