Earlier this month, President Trump issued his “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System”. Beginning November 3rd 2019, all those seeking immigrant visas abroad (including diversity visas) will be required to demonstrate to the consular officer at the time of the interview that he or she will be covered by an approved health insurance within 30 days of entry into the United States, or that he or she has the ability to pay for reasonably foreseeable medical costs. The inability to meet this requirement will result in the denial of the visa application.
President Trump cites Section 212(f) of the Immigration and Nationality Act (8 U.S.C. §1182(f)) as the legal basis for his proclamation. This section of the Act authorizes the president to suspend entry to the United States of any class of migrants if it is found that their entry would be detrimental to the interests of the U.S. The proclamation asserts that lawful immigrants are approximately three times more likely than U.S. citizens to lack health insurance. President Trump further states that although we must continue the long tradition of welcoming immigrants who come to the U.S. lawfully in search of brighter futures, continuing to allow entry certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental to these interests, namely the interest of protecting our healthcare system and the American taxpayer from the burdens of uncompensated care.
The proclamation also directs the Secretaries of State, Health and Human Services, and Homeland Security to report to the president on the financial burdens imposed by immigrants on the health care system. This proclamation is separate from the Public Charge Rule, which is currently on hold due to a court injunction.
To whom does this Proclamation apply?
This requirement will apply to all immigrant visa applicants and individuals seeking to enter the U.S. on an immigrant visa, in other words, individuals who seek immigrant visas abroad. It would not cover those eligible to adjust status from within the United States, nor does it cover those entering with temporary nonimmigrant visas.
Are there any exceptions?
Yes, the following individuals are exempt:
- Anyone issued a valid immigrant visa prior to the effective date (November 3, 2019);
- Individuals seeking Iraqi or Afghan Special Immigrant visas (SI or SQ classification), and their spouses and children (if any);
- Any alien who is the child of a U.S. Citizen: unmarried children under the age of 21 (IR-2), adoptees (IR-3, IR-4, IH-3, or IH-4);
- Parents of adult U.S. citizens (IR-5), provided that the alien or the alien’s sponsor demonstrates to the satisfaction of the consular officer that the alien’s healthcare will not impose a substantial burden on the U.S. healthcare system;
- Returning Resident (SB-1);
- Children under the age of 18, unless accompanied by a parent who is also immigrating to the U.S. and is subject to this proclamation;
- Any alien whose entry would help advance important U.S. law enforcement objectives, as determined by the Secretary of State or his designee based on a recommendation of the Attorney General or his designee; and
- Any alien whose entry would be in the national interest, as determined by the Secretary of State or his designee on a case-by-case basis.
What forms of health insurance are “approved” under the proclamation?
If you are not covered by any of the exceptions above, you will need to show that you will be covered by approved health insurance within 30 days of entry into the U.S. or that you have the ability to pay for reasonably foreseeable medical costs.
Approved health insurance includes:
- Employer-sponsored health plans, including retiree plans;
- Unsubsidized health plans offered in the individual market within a state;
- Short-term, limited duration health plans effective for a minimum of 364 days or until the beginning of planned, extended travel outside the U.S.;
- Catastrophic plans;
- Coverage by a family member’s health plan;
- U.S. military or veteran health plans, including TRICARE;
- Visitor health insurance plans with adequate medical coverage for a minimum of 364 days or until the beginning of planned, extended travel outside the U.S.;
- Medicare plans; and/or
- Any other health plan with adequate coverage as determined by the Secretary of Health and Human Services.
Applicants should review costs and eligibility requirements for approved health insurance plans, consider how they would pay for the reasonably foreseeable medical costs of any current medical condition(s) they may have, and be prepared to demonstrate that they have the financial means to pay for reasonably foreseeable medical costs or will have approved health insurance from the list above within 30 days of entry. Consular officers will review the medical and financial documentation already on-file and may request further information or documentation if necessary.
At this time, the proclamation still raises many unanswered questions. Until detailed guidance is released or adjudications begin at the consular offices, there may not be any clear answers. Moreover, there is the strong possibility that the proclamation will be continue to be challenged legally, just as the public charge rule has been challenged. For instance, just one day before the scheduled effective date, a federal judge in Portland, Oregon blocked the implementation of the policy. Judge Michael Simon issued a nationwide temporary restraining order, preventing the government from carrying out the proclamation that would have gone into effect this past Sunday.
If you believe you or a family member may be affected by this proclamation, or have questions about documentation for an approaching interview date, now is the best time to contact an immigration attorney. At Wilner & O’Reilly, APLC, we offer free, in-person consultations at our offices in Orange, Fresno, Riverside, Sacramento, and San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
Nancy Vo – Attorney
Nancy Vo is an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier, she was an editor on Whittier Law Review and earned a CALI award in Legal Writing. She earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego. She works primarily in the firm’s employment-based practice where she focuses on a wide range of non-immigrant applications including but not limited to Aliens of Extraordinary Ability, internationally-recognized entertainment groups and athletes, L-1 intra-company transfer visas for executives and managers, E-2 treaty visas, as well as DOL Labor Certification applications and employment-based immigrant petitions. Ms. Vo grew up in Los Angeles with three older sisters and parents who were all refugees from Vietnam. She is a second generation Vietnamese American and the first in her family to enter the legal field.
Richard Wilner – Founding Partner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.