[Federal Register Volume 72, Number 214 (Tuesday, November 6, 2007)]
[Proposed Rules]
[Pages 62593-62600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21841]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Parts 100 and 212

[USCBP-2007-0084]
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: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) proposes to amend 
the regulations pertaining to admission of certain nonimmigrants to the 
United States. This rule proposes to authorize issuance of certain 
short-term nonimmigrant visas and temporary admission for aliens who 
are inadmissible solely due to their infection with the human 
immunodeficiency virus (HIV). The proposed rule would provide, on a 
limited and categorical basis, a more streamlined process to authorize 
these nonimmigrant aliens to enter the United

[[Page 62594]]

States as visitors (for business or pleasure) for up to thirty days, 
subject to certain conditions to ensure the control and departure of 
such aliens. Nonimmigrant aliens who do not meet the specific 
circumstances of these clarifying instructions or who do not wish to 
consent to the conditions that would be imposed by this proposed rule 
may still elect a case-by-case determination of their eligibility for a 
waiver of the nonimmigrant visa requirements for aliens afflicted with 
HIV. The proposed rule also updates regulatory language to conform to a 
statutory change brought about by the Immigration Act of 1990.

DATES: Comments must be received on or before December 6, 2007.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Border Security Regulations Branch, Customs and 
Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), 
Washington, DC 20229.

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

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. DHS also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
proposal. Comments that will provide the most assistance to DHS in 
developing these procedures will reference a specific portion of the 
proposal, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected on regular business days between the hours of 9 
a.m. and 4:30 p.m. at the Office of International Trade, U.S. Customs 
and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. 
Arrangements to inspect submitted comments should be made in advance by 
calling Mr. Joseph Clark at (202) 572-8768.

II. Intent of the Proposed Rule

    This proposed rule, initiated at the direction of the President 
(see White House, Fact Sheet: World AIDS Day 2006, December 1, 2006) 
through the Secretary of State (see Section VIII), would establish a 
more streamlined process for issuance of a nonimmigrant visa and 
temporary admission to the United States for aliens who are 
inadmissible to the United States due to HIV infection. DHS is 
proposing to allow these aliens to enter the United States as visitors 
(for business or pleasure) for a temporary period not to exceed thirty 
days, without being required to seek such admission under the more 
complex (individualized, case-by-case) process provided under the 
current DHS policy. The proposed rule would provide an additional 
avenue for temporary admission of these 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. 
Nonimmigrant aliens 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 a waiver of the nonimmigrant visa requirements 
for aliens afflicted with HIV.

III. Applicable Law and Regulations

    An alien infected with HIV is inadmissible to the United States 
under section 212(a)(1)(A)(i) of the Immigration and Nationality Act of 
1952 (INA), as amended, 8 U.S.C. 1182(a)(1)(A)(i). An inadmissible 
alien may be temporarily admitted to the United States under INA 
section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A).
    DHS may authorize temporary admission to the United States under 8 
CFR 212.4(a) or (b). The categorical authorization process proposed in 
this rule would be added to 8 CFR 212.4 in new paragraph (f).

IV. HIV Infection as a Ground of Inadmissibility

    The INA has provided since 1952 that aliens ``who are afflicted 
with any dangerous contagious disease'' are ineligible to receive a 
visa and are to be excluded from admission into the United States. 
Aliens infected with HIV have been inadmissible to the United States 
since 1987, when Congress directed the Department of Health and Human 
Services (HHS) to add HIV infection to its list of dangerous contagious 
diseases. Public Law 100-71, section 518, 101 Stat. 475 (July 11, 
1987); 52 FR 32543 (Aug. 28, 1987). Accordingly, aliens infected with 
HIV have been ineligible to receive visas and have been excludable from 
admission to the United States because of infection with a dangerous 
contagious disease. See INA section 212(a)(6), 8 U.S.C. 1182(a)(6) 
(1988).
    In 1990, Congress amended the INA by revising the classes of 
excludable aliens to provide that an 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'' is excludable from the United States. Immigration Act of 
1990, Public Law 101-649, section 601, 104 Stat. 4978 (Jan. 23, 1990); 
INA section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i), (effective June 
1, 1991). HHS subsequently published a proposed rule that would have 
removed from the list all sexually transmitted diseases (including 
HIV). 56 FR 2484 (Jan. 23, 1991). Based on comments received and 
reconsideration of the issues, HHS published an interim rule retaining 
all sexually transmitted diseases on the list and committing its 
initial proposal to further study. 56 FR 25000 (May 31, 1991). While 
HHS again considered a regulatory amendment to remove HIV from the 
list, Congress amended INA section 212(a)(1) to specify that 
``infection with the etiologic agent for acquired immune deficiency 
syndrome'' is a communicable disease of public health significance, 
thereby making explicit in the INA that aliens with HIV are ineligible 
for admission into the United States. National Institutes of Health 
Revitalization Act of 1993, Public Law 103-43, section 2007, 107 Stat. 
122, (June 10, 1993).
    The INA, as presently worded, 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, which shall include 
infection with the

[[Page 62595]]

etiologic agent for acquired immune deficiency syndrome * * * .'' INA 
section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i). Therefore, any 
alien infected with HIV is inadmissible to the United States.

V. Authority To Grant Temporary Admission

    The Secretary of Homeland Security has broad discretionary 
authority, subject to certain exceptions, to approve the issuance of a 
nonimmigrant visa and the temporary admission into the United States of 
an alien inadmissible due to many of the existing grounds of 
inadmissibility, including HIV infection. See INA section 212(d)(3)(A), 
8 U.S.C. 1182(d)(3)(A). Pursuant to INA section 212(d)(3)(A), 8 U.S.C. 
1182(d)(3)(A), the Secretary of Homeland Security may not authorize 
issuance of a nonimmigrant visa or admission into the United States of 
an otherwise inadmissible alien if the alien's inadmissibility is based 
on certain security or terrorism related grounds, specifically INA 
sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 
(3)(E)(i), and (3)(E)(ii), 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii), 
(3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii). The Secretary is not 
prohibited from authorizing the issuance of a nonimmigrant visa or 
admission if the alien's inadmissibility is based on HIV infection 
under INA section 212(a)(1)(A), 8 U.S.C. 1182(a)(1)(A) (health-related 
grounds).
    The Secretary of Homeland Security may authorize issuance of a 
nonimmigrant visa and temporary admission to the United States (see INA 
section 212(d)(3)(A)(i), 8 U.S.C. 1182(d)(3)(A)(i), and 8 CFR 212.4(a)) 
or authorize temporary admission only (see INA section 
212(d)(3)(A)(ii), 8 U.S.C. 1182(d)(3)(A)(ii), and 8 CFR 212.4(b)). 
Nonimmigrant aliens may seek a nonimmigrant visa and temporary 
admission to the United States from a consular officer or the Secretary 
of State. An alien who is applying for a nonimmigrant visa and is 
known, or believed by, the consular officer to be ineligible for a 
visa, may, after approval by the Secretary of Homeland Security of a 
recommendation by the Secretary of State or by the consular officer 
that the alien be admitted temporarily despite his inadmissibility, be 
granted such a visa and may be admitted into the United States 
temporarily in the discretion of the Secretary of Homeland Security. 
[0] An applicant who has already been issued a nonimmigrant visa (or 
who has been granted a waiver of the nonimmigrant visa requirement) may 
apply to DHS for approval of temporary admission; such approval is 
granted at the discretion of the Secretary of Homeland Security.
    When Congress first enacted this authority to authorize admission 
for nonimmigrants despite inadmissibility in 1952, the Committee on the 
Judiciary stated that ``cases will continue to arise where there are 
extenuating circumstances which justify the temporary admission of 
otherwise inadmissible aliens, both for humane reasons and for reasons 
of public interest.'' S. Rep. No. 1137, 82d Cong., 2d Sess. 12 (1952). 
This statement of Congressional understanding and purpose has continued 
validity today and supports the proposed streamlined process for 
authorizing, on a categorical basis, issuance of a nonimmigrant visa 
and temporary admission to the United States for HIV-positive aliens 
seeking admission to the United States under B-1 (business visitor) or 
B-2 (visitor for pleasure) nonimmigrant status who satisfy the 
conditions discussed below.
    The Secretary may exercise his discretion by rulemaking rather than 
on a case-by-case basis. As the Supreme Court noted, ``[e]ven if a 
statutory scheme requires individualized determinations * * *, the 
decisionmaker has the authority to rely on rulemaking to resolve 
certain issues of general applicability unless Congress clearly 
expresses an intent to withhold that authority.'' 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). See also id. at 244 (noting that 
purely case-by-case decision making ``could invite favoritism, 
disunity, and inconsistency''). Accordingly, ``it is a well-established 
principle of administrative law that an agency to whom Congress grants 
discretion may elect between rulemaking and ad hoc adjudication to 
carry out its mandate.'' Yang v. INS, 79 F.3d 932, 936 (9th Cir.), 
cert. denied, 519 U.S. 824 (1996).
    Absent an indication of contrary Congressional intent in the INA, 
the Secretary of Homeland Security may determine to exercise discretion 
under INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), on a 
categorical basis, to authorize issuance of a nonimmigrant visa to, and 
admission of, otherwise inadmissible aliens, including aliens 
inadmissible due to HIV infection. Unlike other provisions governing 
the Secretary of Homeland Security's authority to waive grounds of 
inadmissibility, the language of INA section 212(d)(3)(A) does not 
clearly limit the Secretary's exercise of discretion under that 
provision to case-by-case determinations. The reference in the last 
sentence of section 212(d)(3)(A) to aliens, in the plural, provides 
contextual support for the Secretary exercising this discretion on a 
categorical basis. In contrast, an explicit waiver provision under the 
INA specifically requires the exercise of discretion ``in individual 
cases.'' INA section 212(d)(4), 8 U.S.C. 1182(d)(4) (permitting waiver 
of ``[e]ither or both of the requirements'' of INA section 
212(a)(7)(B)(i), 8 U.S.C. 1182(a)(7)(B)(i)). The lack of comparable 
language limiting the Secretary's authority under INA section 
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), indicates that Congress did not 
intend to prohibit the Secretary from exercising his authority on a 
categorical basis under this section.
    DHS has previously granted blanket authorization 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. The legislative history of INA section 212(d)(3), 8 
U.S.C. 1182(d)(3), suggests that DHS should apply the provision where 
``there are extenuating circumstances which justify the temporary 
admission of otherwise admissible aliens, both for humane reasons and 
for reasons of public interest.'' S. Rep. No. 1137, supra, at 12. 
Authorization on a categorical basis, as proposed by this rule, would 
require approval only by the consular officer or the Secretary of 
State, provided that all requirements and conditions are satisfied; 
authorization under more expansive terms and conditions will still 
require individualized, case-by-case consideration by DHS.

VI. Current DHS Policy

    DHS policy currently allows otherwise inadmissible aliens, pursuant 
to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), to apply for 
admission on a case-by-case basis by employing a balancing test 
involving several factors (regardless of whether the authorization is 
applied for before a consular officer, the Secretary of State or 
directly to DHS). Consideration is given to 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 (the basis for 
inadmissibility), and the nature of the reason for travel. See Matter 
of Hranka, 16 I&N Dec. 491 (BIA 1978). These are

[[Page 62596]]

general criteria applicable to any application for authorization under 
INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). This proposed rule 
would incorporate current policy further developed in a series of 
instructions from the former Immigration and Naturalization Service 
(INS) and the Department of Justice.
    In cases involving HIV-positive aliens, DHS policy requires that 
consideration be given to whether: (1) The danger to the public health 
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 former two factors are no more than minimal and that there 
will not be a cost to an agency absent prior consent.
    Other specific instructions clarify that nonimmigrant visas may be 
granted and temporary admission may be provided to short-term 
nonimmigrant individuals with HIV who establish that their entry into 
the United States, for up to thirty days, would confer a public benefit 
that outweighs any risk to the public health. A sufficient public 
benefit can include attendance at academic or health-related activities 
(including seeking medical treatment), conducting temporary business in 
the United States, or visiting close family members in the United 
States. Currently, applicants whose situations do not fit the specific 
circumstances of these clarifying instructions, such as those entering 
for periods of more than thirty days or for tourism purposes alone, 
must apply for case-by-case consideration and authorization. These 
applicants must satisfy the more general criteria of the general policy 
(risk of harm to society, seriousness of immigration/criminal 
violations, reason for travel), as these criteria apply to all 
situations. Determination of the risk of harm to society includes 
whether the danger to the public health and the possibility of 
transmission of the infection are minimal and whether there will be any 
cost incurred by any level of government agency in the United States.
    In addition, supplemental instructions provide that DHS may grant 
authorization for admission whenever the Secretary of HHS advises that 
attendance at a scientific, professional, or academic conference in the 
United States is in the public interest, and the alien establishes that 
his or her visit to the United States is for the purpose of seeking 
admission to such a designated conference and will not exceed ten days.
    Under the current policy, these criteria are applied on a case-by-
case basis to applications (or a consular officer's or the Secretary of 
State's recommendation) for authorization for admission. In practice, 
DHS, the Department of State (DOS), and the Department of Justice 
(DOJ)(through the former Immigration and Naturalization Service (INS)) 
have denied very few applications (or recommendations) for 
authorization for admission when the specific criteria for short stays 
of up to thirty days were satisfied or when the Secretary of HHS 
initiated the designated-event waiver for visits of up to ten days. 
However, some applications have been denied when the applicant failed 
to meet all relevant criteria, e.g., when an applicant refused to 
provide adequate assurance that he or she would comply with medical 
advice against engaging in behavior that would risk transmitting the 
infection to others.
    In addition, under the general criteria, as applied in practice to 
HIV-positive applicants for admission, these applicants must establish 
that they are aware of their HIV positive condition, have received (and 
are following) adequate medical counseling, are currently under medical 
care, and are traveling to the United States with, or will have access 
to, a supply of drugs, as medically appropriate, that is adequate to 
cover the length of the anticipated stay. The applicant also must be 
able to demonstrate that he or she has adequate insurance, which is 
accepted in the United States, or other financial means available to 
cover anticipated medical expenses.

VII. Experience Gained

    During the twenty years since Congress directed HHS to add 
infection with HIV to the list of dangerous contagious diseases, thus 
adding infection with HIV as a ground of inadmissibility under the INA, 
the Executive Branch has gained considerable experience in deciding 
when to allow the admission of nonimmigrant aliens with HIV infection. 
The history of this period has shown that DHS and the Department of 
Justice have consistently approved DOS consular recommendations that 
nonimmigrant visas be granted to aliens with HIV infection when the 
applicant: Sought to travel to the United States for thirty days or 
less for a lawful purpose consistent with the business visitor or 
tourist nonimmigrant classification; had been diagnosed with HIV 
infection; had received medical counseling; was in compliance with 
medically-advised behavior and medically-prescribed treatment 
protocols; was able to demonstrate availability once in the United 
States of an adequate supply of antiretroviral medications if medically 
appropriate; and was not likely to require assistance that would result 
in any cost incurred by any level of government agency in the United 
States without the prior consent of that agency.
    HHS and its components also have gained considerable expertise 
regarding the threat to the public posed by HIV-positive individuals. 
HHS has expressed the view that present DHS policy has provided 
adequate protection to the public health of the United States and HIV-
positive aliens who are aware of their medical conditions, receive 
appropriate medical counseling, and are in compliance with medically 
appropriate treatment protocols and medically advised behavior have 
presented little risk to the public health in the United States.

VIII. Presidential Directive Predicating This Rulemaking

    On December 1, 2006, President Bush directed the Secretary of State 
to request that the Secretary of Homeland Security initiate a 
rulemaking that would propose a categorical waiver of inadmissibility 
for aliens who are HIV-positive and who seek to enter the United States 
on short-term visas. In furtherance of the President's directive, 
Secretary of State Rice, by letter dated June 6, 2007, recommended that 
the Secretary of Homeland Security grant a limited waiver of 
inadmissibility under the INA to persons who are currently inadmissible 
to the United States solely due to their HIV-positive condition. 
Secretary Rice specifically recommended a waiver for persons who seek 
short-term B-1 and B-2 visas and do not have active, contagious, 
symptomatic infections associated with HIV or AIDS.
    DHS shares the President's and Secretary Rice's firm commitment to 
enable, on a categorical basis, the admission into the United States 
for short visits of HIV-positive aliens, who do not exhibit symptoms 
indicative of an active AIDS-related condition that is contagious, 
through a permanent, streamlined process that employs standardized 
criteria as opposed to the current case-by-case, individualized 
process.

IX. The Proposed Rule

    DHS is proposing, on a categorical basis under new provisions of 8 
CFR 212.4(f), to authorize issuance of visas and admission of 
nonimmigrant aliens who are currently inadmissible to the

[[Page 62597]]

United States solely due to their HIV-positive status. DHS is proposing 
this categorical authorization to allow application for admission to 
the United States under B-1 (business visitor) or B-2 (visitor for 
pleasure) status for a period not to exceed thirty days if the 
applicant establishes specific facts and meets certain conditions.

A. Safeguards

    This proposed rule does not conflict with Congress' restriction 
regarding HIV as a communicable disease of public health significance 
and is consistent with Congress' humanitarian purpose in enacting INA 
section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). The proposed regulations 
demonstrate DHS's recognition of the seriousness of HIV infection and, 
at the same time, comply with the statute 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 proposed 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, 
federal) without prior consent of a government agency. The short 
duration of admission under the proposed regulations, and the various 
conditions designed to control the alien's temporary stay and ensure 
his or her return, 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 proposed regulations 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.

B. Specific Conditions of Admission, Control, and Return

    The proposed rule includes specific requirements (based in part on 
criteria discussed above), which are set forth here by type.
    (1) Medical etiology. A visa applicant, who has tested positive for 
HIV, must show a controlled state of HIV infection such that there is 
no anticipated need for additional medical care during the applicant's 
visit to the United States. A controlled state of HIV infection means 
that the applicant does not exhibit, at the time of application, 
symptoms indicative of an active AIDS-related condition that is 
contagious or that requires urgent treatment.
    In cases involving HIV-positive aliens, DHS policy requires that 
consideration be given to whether: (1) The danger to the public health 
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 former two factors are no more than minimal and that there 
will not be a cost to an agency absent prior consent.
    (2) Understanding. The applicant must establish that he or she is 
aware of, understands, and has been counseled on the nature and 
severity of his or her medical condition. As part of this process, the 
applicant also must establish that he or she has been counseled on and 
is aware of the communicability of his or her medical condition, 
including the fact that the applicant must not donate blood or blood 
components.
    (3) Limited potential health danger. The applicant must establish 
that his or her admission to the United States for a short duration 
poses minimal risk of danger to the public health in the United States. 
The applicant must establish that his or her admission poses a minimal 
risk of danger of transmission of the infection to any other person in 
the United States through demonstration of knowledge of the routes of 
transmission of HIV, including sexual contact, sharing needles, and 
blood transfusions.
    (4) Continuity of health care. As with existing policy, admission 
is contingent upon assurances that the applicant will not impose costs 
on the health care system of the United States. Accordingly, the 
applicant must establish that he or she has, or will have access to, an 
adequate supply of antiretroviral drugs if medically appropriate for 
the anticipated stay in the United States. The Food and Drug 
Administration (FDA) has developed enforcement policies under which it 
may exercise its enforcement discretion not to interdict the 
importation of unapproved medications for personal use in such 
circumstances. See http://www.fda.gov/ora/compliance_ref/rpm/chapter9/ch9-2.html.
    Moreover, the applicant must establish that he or she possesses 
sufficient assets or insurance, that is accepted in the United States, 
that would cover any medical care that the applicant might require in 
the event of illness at any time while in the United States. These two 
factors lead to a third factor: The applicant must establish that his 
or her 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 that agency.
    (5) Temporary Admission. The proposed categorical treatment, like 
the individualized treatment under current DHS policy, is designed only 
for a temporary admission. Accordingly, the applicant must establish 
that he or she is seeking admission solely for activities that are 
consistent with the B-1 (business visitor) or B-2 (visitor for 
pleasure) nonimmigrant classifications. Travel for tourism only is an 
activity consistent with this categorical admission. The applicant must 
understand that because of his or her inadmissibility, he or she is not 
eligible to seek admission under the Visa Waiver Program. INA section 
217, 8 U.S.C. 1187. Under current statutes and regulations, all HIV-
positive applicants for admission from Visa Waiver Program countries 
must apply for and be granted a visa to be admitted to the United 
States. The applicant must also understand and agree that no single 
admission to the United States will be for more than thirty days. 
Because the proposed regulations apply to a specific ground of 
inadmissibility, the applicant must establish that no other ground of 
inadmissibility applies. Authorization for admission may not be granted 
if any other ground of inadmissibility exists. If the applicant 
requires an additional waiver of inadmissibility, the applicant must 
use the process described in either 8 CFR 212.4(a) or (b), as 
applicable.
    (6) Enforcement of the Authorization Agreement. As this 
authorization for admission is being granted for a narrow, limited 
purpose, DHS believes that the applicant must agree to certain 
conditions. DHS believes that the applicant must understand and agree 
in writing, once the Department of State issues a waiver form, that he 
or she, for the purpose of admission pursuant to this waiver, is 
waiving the opportunity to apply for any extension of nonimmigrant 
stay, a change of nonimmigrant status, or adjustment of status to that 
of permanent resident,\1\ whether filed affirmatively with DHS or 
defensively in response to an action for removal. DHS alternatively 
solicits comments on whether consular officers may orally advise or 
provide written notification to the applicant that he or

[[Page 62598]]

she has waived the opportunity to apply for any extension of 
nonimmigrant stay, a change of nonimmigrant status, or adjustment of 
status to that of permanent resident in lieu of the applicant executing 
a written waiver of these opportunities. If the applicant chooses not 
to waive the opportunity to apply for any extension of nonimmigrant 
stay, a change of nonimmigrant status, or adjustment of status to that 
of permanent resident, the applicant is not eligible for the 
streamlined process delineated in this proposed rule. However, the 
applicant may still elect a case-by-case determination of his or her 
eligibility for a waiver of the nonimmigrant visa requirements for 
aliens afflicted with HIV.
---------------------------------------------------------------------------

    \1\ Nothing within this proposed rule would prohibit an alien 
from applying for an immigrant visa before a consular officer 
abroad.
---------------------------------------------------------------------------

    Furthermore, under the proposed rule, an applicant must understand 
and agree that any failure to comply with conditions of admission will 
make him/her permanently ineligible for authorization for admission 
under the proposed regulations.
    (7) Duration. The nonimmigrant visa issued to the applicant will be 
valid for twelve months or less and may be used for a maximum of two 
applications for admission. The authorized period of stay will be for 
thirty calendar days calculated from the initial admission under this 
visa. The holder of the nonimmigrant visa will be permitted to apply 
for admission at a United States port of entry at any time during the 
validity of the visa if he or she is otherwise admissible in B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant status.

C. Benefit of the Proposed Regulations

    An alien inadmissible to the United States due to HIV infection 
under INA section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i) (or any 
other ground of inadmissibility under section 212(a), 8 U.S.C. 1182(a), 
except (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or 
(3)(E)(ii)), has been, and is currently, able to apply for admission 
pursuant to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), under 
either 8 CFR 212.4(a) or (b). Although authorization for admission 
pursuant to 8 CFR 212.4(a) is sought from a consular officer or the 
Secretary of State, it is an application for issuance of a nonimmigrant 
visa and temporary admission that requires the approval of the 
Secretary of Homeland Security. Authorization for admission pursuant to 
8 CFR 212.4(b) is applied for, with payment of a fee, directly to DHS 
(on Form I-192) by an alien who already has a nonimmigrant visa, or for 
whom the nonimmigrant visa requirement is waived, and is approved at 
the discretion of the Secretary of Homeland Security.
    These existing processes require action by DHS upon submission of 
eligibility information (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 (or individualized) basis. In contrast, 
the proposed regulation 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 granting 
of the nonimmigrant visa. Using a categorical authorization would 
provide a more streamlined and quicker process for obtaining temporary 
admission under INA section 212(d)(3)(A)(i), 8 U.S.C. 1182(d)(3)(A)(i).

X. Other Proposed Amendment

    DHS also is proposing to amend 8 CFR 212.4(e) to reflect changes in 
the grounds of inadmissibility brought about by the Immigration Act of 
1990. Section 212.4(e) authorizes the temporary admission of a 
nonimmigrant visitor notwithstanding inadmissibility under INA section 
212(a)(1), if the alien is accompanied by a member of his or her family 
or a guardian. Prior to June 1, 1991, INA section 212(a)(1) made 
excludable from the United States aliens who were ``mentally 
retarded.'' Effective June 1, 1991, the Immigration Act of 1990 
reorganized all medical grounds of excludability into a new general 
provision, INA section 212(a)(1). The references in 8 CFR 212.4(e) to 
INA section 212(a)(1) were never updated. There is no present ground of 
inadmissibility for aliens who are ``mentally retarded.'' However, INA 
sections 212(a)(1)(A)(iii)(I) and 212(a)(1)(A)(iii)(II), 8 U.S.C. 
1182(a)(1)(A)(iii)(I) and 8 U.S.C. 1182(a)(1)(A)(iii)(II), make 
inadmissible aliens who have, or have had, a mental disorder with 
associated threatening or harmful behavior. DHS is proposing to amend 8 
CFR 212.4(e) by replacing the references to INA section 212(a)(1) with 
references to the current INA sections relating to the grounds of 
inadmissibility for aliens with mental disorders, INA sections 
212(a)(1)(A)(iii)(I) and 212(a)(1)(A)(iii)(II). As neither the current 
nor the proposed regulations authorize the granting of a nonimmigrant 
visa, only aliens who already have facially valid nonimmigrant visas or 
for whom the nonimmigrant visa requirement is waived would be able to 
benefit from the proposed amendment to 8 CFR 212.4(e).

XI. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act.

    DHS has reviewed the proposed 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 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.

B. Unfunded Mandates Reform Act of 1995

    The proposed 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.

C. 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.

D. Executive Order 13132

    The proposed 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.

E. Executive Order 12988

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

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all

[[Page 62599]]

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.

Proposed Amendments to the Regulations

    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 proposed to be amended as follows:

PART 100--STATEMENT OF ORGANIZATION

    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]

    2. Section 100.7 is amended by removing the citation ``212.4(g)'' 
in the list of parts and sections and adding in its place the citation 
``212.4(h)''.

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

    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).
* * * * *
    4. Section 212.4 is amended by:
    a. In paragraph (e), removing the citation ``212(a)(1)'' in the 
paragraph text and adding in its place ``212(a)(1)(A)(iii)'', and 
removing the citation ``212(a)(1) of the Act'' and adding in its place 
``212(a)(1)(A)(iii)(I) or (II) of the Act due to a mental disorder and 
associated threatening or harmful behavior'';
    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 
thirty days, 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 with HIV infection 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 thirty 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 
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;
    (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 a 
waiver under this paragraph (f), waives any opportunity to apply for an 
extension of nonimmigrant stay, a change of nonimmigrant status, or 
adjustment of status to that of permanent resident;
    (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 thirty 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. 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.
    (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 conditions may 
indicate.

[[Page 62600]]

    (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. E7-21841 Filed 11-5-07; 8:45 am]
BILLING CODE 9111-14-P