HQ
70/21.1.1
HQ 70/12.2.1
AFM Update AD10-03
Memorandum
TO: EXECUTIVE LEADERSHIP
FROM: Lori Scialabba /s/
Associate
Director
Refugee,
Asylum & International Operations Directorate
Donald
Neufeld /s/
Acting
Associate Director Domestic Operations Pearl Chang /s/
Acting Chief
Office of
Policy and Strategy
DATE: November 24, 2009
SUBJECT: Public Law
110-293, 42 CFR 34.2(b), and Inadmissibility Due to Human
Immunodeficiency Virus (HIV) Infection
Revision to
Adjudicator’s Field Manual (AFM) Chapters 24.2, 40.1, 41.3, and Appendix
41-1, 41-2, and 41-3 (AD 10-03)
1. Purpose
Effective January 4, 2010, Human Immunodeficiency
Virus (HIV) infection will no longer make an alien inadmissible under
section 212(a)(1)(A)(i) of the Immigration and Nationality Act (Act). This
memorandum accordingly provides guidance for applications involving HIV.
2. Background
In 2008, Congress amended
section 212(a)(1)(A)(i) of the Act and no longer required the Secretary of
Health and Human Services (HHS) to designate HIV infection as a
“communicable disease of public health significance.” See Act of July
30, 2008, Pub. L. No. 110-293, § 305, 122 Stat. 2918, 2963 (2008). On July
2, 2009, HHS published a proposed amendment to 42 CFR 34.2(b) in the
Federal Register at 74 Fed. Reg. 31798. The amendment proposed to
remove HIV infection from the list of communicable diseases of public health
significance. On November 2, 2009, HHS published the final rule, amending
its regulations at 42 CFR 34.2(b) and removed HIV infection from the
definition of “communicable disease of public health significance.” 74 FR
56547 (November 2, 2009). This regulatory amendment is effective January 4,
2010.
Admissibility is determined
based on the law in effect at the time of the final decision. Matter of
Alarcon, 20 I&N Dec. 557 (BIA 1992). For this reason, effective January
4, 2010, any alien diagnosed with HIV infection will no longer be
inadmissible under section 212(a)(1)(A)(i) of the Act.
On September 15, 2009, USCIS instructed its officers to
hold in abeyance any pending benefit application that was deniable under
current HHS regulations but would become approvable once HIV infection was
removed from 42 CFR 34.2(b). See memorandum entitled, "Public Law
110-293, 42 CFR 34.2(b), and Inadmissibility Due to Human Immunodeficiency
Virus (HIV) Infection”.
3. Guidance
A. Adjudication before January 4, 2010
Between now and January 4,
2010, USCIS offices should continue to adjudicate cases involving HIV
infection under the following guidelines:
-
If an applicant has already filed a waiver of inadmissibility because of
HIV infection and waiver is approvable under current law, the officer
should adjudicate the waiver and the related benefit application.
-
If an applicant has already filed a waiver of inadmissibility because
of HIV infection and the waiver is not approvable under current law, the
officer will hold the case in abeyance until January 4, 2010.
-
If an applicant is inadmissible because of HIV infection but has not yet
filed a waiver, the officer should advise the applicant that the case
will be held in abeyance until January 4, 2010, unless the alien
requests adjudication by filing a waiver.
An applicant must generally file a motion to reopen
or reconsider, with the fee prescribed by 8 CFR103.7(b), within 30 days of a
USCIS decision. USCIS has decided to waive this filing deadline if USCIS
denied a case, based solely on HIV infection, on or after July 2, 2009, the
date of the proposed rule. In a case decided on or after July 2, 2009, the
USCIS officer should grant an untimely motion, filed with the proper filing
fee. Once the final rule takes effect the USCIS officer should make a new
decision in light of the final HHS rule.
B. Adjudication on or
after January 4, 2010
Beginning January 4, 2010, an officer should
administratively close any waiver application. Because the alien was
inadmissible at the time he or she filed the waiver application,
administrative closure of the waiver application will not justify refunding
the filing fee.
Furthermore, an officer will not consider any
diagnosis of HIV infection when determining inadmissibility under
212(a)(1)(A)(i) of the Act. If the civil surgeon or panel physician omitted
the results of the HIV testing on any medical examination documentation
prior to January 4, 2010, but the case is adjudicated on or after January 4,
2010, the officer should disregard the lack of HIV testing.
- Adjudicator’s
Field Manual (AFM) Update
The
Adjudicator’s Field Manual (AFM) is updated accordingly, and the
following subchapters of the AFM are revised:
-
Subchapter 24.2(e)(3)(B) (HIV/AIDS Test) of the AFM is deleted in
its entirety.
-
Subchapter 40.1(b)(2) of the AFM is revised to read as follows:
40.1. HEALTH -RELATED GROUNDS OF INADMISSIBILITY AND MEDICAL EXAMINATIONS
*****
(b)(2) Communicable Diseases of Public Health Significance. As of
January 4, 2010, HHS has designated the following conditions as communicable
diseases of public health significance in accordance with 42 CFR 34.2(b):
a)
Chancroid.
b)
Communicable diseases as listed in a Presidential Executive Order, as
provided under Section 361(b) of the Public Health Service Act. The current
revised list of quarantinable communicable diseases is available at
http://www.cdc.gov and http://www.archives.gov/federal-register.
c)
Communicable diseases that may pose a public health emergency of
international concern if it meets one or more of the factors listed in 42
CFR34.3(d)http://www.access.gpo.gov/nara/cfr/waisidx_03/42cfr34_03.html and
for which the CDC Director has determined (A) a threat exists for
importation into the United States, and (B) such disease may potentially
affect the health of the American public. HHS/CDC's determinations will be
announced by notice in the Federal Register.
d)
Gonorrhea.
e)
Granuloma inguinale.
f)
Leprosy, infectious.
g)
Lymphogranuloma venereum.
h)
Syphilis, infectious stage.
i)
Tuberculosis, active. Only a Class A tuberculosis (TB) diagnosis
renders an applicant inadmissible to the U.S. Under current CDC guidelines,
Class A TB means tuberculosis that is clinically active and communicable.
Special Note on HIV. As of January 4, 2010, HIV is no longer defined
as a communicable disease of public health significance. Until July 30,
2008, section 212(a)(1)(A)(i) of the Act had specifically required the
Secretary of Health and Human Services to classify HIV infection as a
communicable disease of public health significance. Public Law 110-293 (July
30, 2008) removed this requirement. On November 2, 2009, HHS published a
final rule that removes HIV infection from the definition of a communicable
disease of public health significance effective as of January 4, 2010. See
74 FR 56547 (November 2, 2009). Therefore, as of January 4, 2010, an alien
infected with HIV is no longer inadmissible to the United States under
section 212(a)(1)(A)(i) of the Act. Furthermore, as of January 4, 2010, the
adjudicator should disregard a diagnosis of HIV infection when determining
inadmissibility under section 212(a)(1)(A)(i) of the Act. .
-
Subchapter 40.1(e)(2) is revised as follows, removing all mention of
HIV infection:
40.1 HEALTH-RELATED GROUNDS OF INADMISSIBILITY AND MEDICAL EXAMINATIONS
* * * *
(e) Revision of Form I-693.
* * * * * * * *
(2) Serologic (Blood) Tests. All applicants who are 15
years of age and older at the time of the medical examination must undergo
serologic testing for syphilis. Applicants under the age of 15 at the time
of the examination must also undergo serologic testing if there is reason
for the civil surgeon or USCIS to suspect infection.
If the applicant was younger than 15 at the time of the medical examination
but has turned 15 while the application is pending, he or she is not
routinely required to return to the civil surgeon for serologic testing. If
the adjudicator has reason to suspect, however, that the applicant may have
acquired syphilis since the medical examination took place, it is within the
adjudicator’s discretion to require the applicant to return to the civil
surgeon for further tests.
-
Subchapter 41.3(a)(2) of the AFM is revised in its entirety to read
as follows:
Public Law 110-293, 42 CFR 34.2(b), and inadmissibility due to HIV infection
41.3 WAIVER OF MEDICAL GROUNDS OF INADMISSIBILITY
* * *
*
(a)
Waivers under Section 212(g)(1) of the Act. * * *
* * *
*
(2) HIV. As of January 4, 2010, HIV infection is no longer defined as a
communicable disease of public health significance according to HHS’
regulations. See 42 CFR 34.2(b) as amended by 74 FR 56547 (November
2, 2009). Therefore, HIV infection does not make the alien
inadmissible under section 212(a)(1)(A)(i) of the Act for any immigration
benefit adjudicated on or after January 4, 2010, even if the alien filed the
immigration benefit application before January 4, 2010.
Accordingly, the adjudicator should administratively close any HIV waiver
application filed before January 4, 2010, but adjudicated on or after
January 4, 2010.
3.
Subchapter 41.3(b) of the AFM is deleted in its entirety.
4.
Appendix 41-1 (Guidance Regarding Waivers for HIV+ Refugees) of the AFM is
deleted in its entirety.
5.Appendix 41-2 (CDC Form for Applicants with HIV Infection) of the AFM is
deleted in its entirety.
6.
Appendix 41-3 (Headquarters Program Responsibility For Nonimmigrant Waivers
of Inadmissibility) of the AFM is deleted in its entirety.
-
Use
This memorandum is intended solely for the training and guidance of USCIS
personnel in performing their duties relative to the adjudication of an
immigration benefit. It is not intended to, does not, and may not be relied
upon to create any right or benefit, substantive or procedural, enforceable
at law by any individual or other party in removal proceedings, in
litigation with the United States, or in any other form or manner.
-
Contact Information
Questions regarding this memorandum and USCIS policy regarding the medical
examination of aliens may be directed through supervisory channels to OFO
AOS and Legalization Mailbox, John T. Baldwin, Service Center Operations,
Family & Status Branch, Whitney Reitz, Programs Branch Chief, RAIO/International
Operations, Pamela G. Williams, Policy and Regulation Management, or Roselyn
Brown-Frei, Office of Policy & Strategy.
