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). 
 
----------- 
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. 
 
---------------------- 
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 
 
STATE 00128614  005.2 OF 005 
 
 
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