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11.07.19

Trump’s immigrant health insurance proclamation blocked by federal court

BY Jason Gerrol

On October 4, 2019, President Trump issued his Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, which was scheduled to go into effect on November 3, 2019. Under the proclamation, foreign nationals applying for an immigrant visa abroad, with certain exceptions, would have been required to demonstrate to the satisfaction of the adjudicating Department of State (DOS) Officer that they would be covered by approved health insurance within 30 days of their entry into the U.S. or that they have sufficient financial resources to pay for "reasonably foreseeable medical costs." However, on October 30, 2019, the proclamation was temporarily blocked by an Oregon federal court, and its future is currently uncertain.

Why was the proclamation blocked?

The proclamation provided a list of plans and programs that qualify as "approved health insurance," but did not, however, define what constitutes sufficient financial resources to pay for "reasonably foreseeable medical costs." On October 29, 2019, the DOS issued an emergency notice (providing a comment period of less than 48 hours), outlining the questions DOS Officers were to ask immigrant visa applicants regarding health insurance coverage and defining "reasonably foreseeable medical costs" as "those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication." Needless to say, the proclamation and subsequent emergency notice provided immigrant visa applicants with little certainty about how the proclamation would be enforced. The proclamation was expected to result in a significant increase in the number of immigrant visa denials.

On October 30, 2019, a group of plaintiffs filed a complaint challenging both the president's proclamation and the DOS emergency notice, arguing various Administrative Procedure Act (APA) violations and that the proclamation's reliance on one single factor (i.e., the healthcare insurance status of an applicant) to determine "public charge" inadmissibility conflicts with the "totality of the circumstances" test required by the Immigration and Nationality Act (INA), among other arguments.

On November 2, 2019, an Oregon federal court issued a temporary restraining order blocking enforcement of the proclamation, finding the plaintiffs have shown a likelihood of success on the merits of their claims. The court noted that many of the proclamation's types of "approved health insurance" are "legally or practically unavailable to many immigrants," and further, both the proclamation and emergency notice provide no guidance for how a DOS Officer "with no medical training" is to evaluate "reasonably foreseeable medical costs." 

What is next?

As litigation in this matter continues, immigrant visa applicants should be sure to consult with immigration counsel regarding the status of the proclamation. Furthermore, both non-immigrant and immigrant visa applicants should consult with immigration counsel regarding the status of the Department of Homeland Security's new public charge rule, which has also been temporarily blocked by the courts, and the DOS public charge rule, which is currently on hold.

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Jason Gerrol

Of Counsel

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