**Re: DHS Notice of Proposed Rulemaking USCBP-2007-0084; RIN 1651-AA71**

The National Immigration Forum submits the following comment regarding
the Department of Homeland Security's Notice of Rulemaking regarding
"Issuance of a Visa and Authorization for Temporary Admission into the
United States for Certain Nonimmigrant Aliens Afflicted with HIV
Infection**."**

The Forum advocates and builds support for public policies that welcome
immigrants and refugees and are fair and supportive to America's
newcomers and the communities in which they settle.  As part of its
mission, the Forum promotes policies to encourage immigrants to become
fully integrated into American society. 

The Forum recognizes the needs of the Department to balance the rule of
law with fair immigration policies. However, we believe this proposal
imposes harsh rules on travelers afflicted with HIV and their families;
amplifies the stigma towards HIV-infected travelers without
justification; and fails to achieve its stated goal of "streamlining"
the waiver process for such travelers. For these reasons, we oppose this
rule.

The rule provides 30-day visas and temporary admission for foreign
nationals who are inadmissible solely because they are afflicted with
HIV. The rule identifies a series of conditions and requirements an
applicant must show to obtain a waiver, many of which are onerous. For
example, an applicant must disclose her HIV infection; establish that
she is aware of and has been counseled on the severity of her medical
condition; establish that her admission to the United States poses
minimal health risk to the United States public health; show that she
will not impose costs on the United States healthcare system, by for
example, documenting her access to approvable drugs and possession of
private health insurance; among other requirements. Indeed, the terms
and conditions are so numerous that in our view they run counter to the
stated efforts by DHS to "streamline" the waiver process for travelers
afflicted with HIV.

The rule suggests that the waiver process will be "streamlined" because
a consular officer or Secretary of State would have the opportunity to
categorically grant a nonimmigrant visa and authorize admission to such
immigrants without the additional step of review by DHS. Notwithstanding
this proposed change, we believe the rule's new requirements will only
make the waiver process more burdensome.

Under this rule, waiver applicants must also surrender their opportunity
to apply for any extension of nonimmigrant status, a change of
nonimmigrant status or adjustment of status to that of a permanent
resident whether filed affirmatively with DHS or defensively before an
immigration judge. The consequences of requiring individuals to
relinquish these rights may be significant for certain individuals. For
example, individuals would be barred from adjusting their status even if
they were to obtain asylee status in the United States. Forcing such
individuals to process their cases abroad is overreaching, serves no
legitimate government purpose, and in some cases may be impossible. In
addition to these practical concerns, DHS's proposal to require
immigrants to affirmatively waive their rights undermines basic notions
of fairness. Rather than solicit commentary on the due process questions
raised by this bar, DHS instead asks the public to comment on whether a
consular officer may verbally notify an applicant about the "waiver of
rights" in lieu of placing something in writing. We find this deeply
troubling.

On paper, the rule preserves the ability for travelers with HIV who are
ineligible for or who choose not to apply for the proposed waiver to
pursue entry under a pre-existing waiver in the immigration statute.
However, we have concerns with the resulting perception concerning
travelers who opt out of the new waiver process. (i.e., Will they be
seen as holding "immigrant intent"?) We also have concerns about a
consular officer's ability to distinguish among the various waiver
options let alone explain them to an entering nonimmigrant. Finally, we
have legitimate concern about DHS's potential to apply the new waiver
requirements to the pre-existing waiver process.

Finally, we note our moral concerns with the government's continued
stigmatization of HIV as a ground of inadmissibility, despite years of
medical advancement and reality that HIV is no longer an untreatable
illness.

Thank you for your consideration.

Sincerely,

Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia, Esq.

Deputy Director for Legal Affairs

National Immigration Forum

50 F Street NW, Suite 300\
Washington, DC 20001\
Phone: (202) 347-0040 (main)

Phone: (202) 383-5991(direct)\
Fax: (202) 347-0058

www.immigrationforum.org