First Impression: Presidential Proclamation Barring Immigrants Lacking Health Insurance

This is my first impressions of President Trump’s Oct. 4 proclamation barring issuance of immigrant visas to applicants with no “approved” health insurance.

The proclamation will take effect on November 3, 2019. In the coming weeks, the State Department should issue more specific guidelines regarding what health insurance plans are acceptable and what evidence to submit with a visa application.

Our law firm is closely tracking the implementation of the proclamation and will provide updates as new information becomes available. 

The proclamation also builds on a new rule, issued by the administration in August, that allows federal officials to deny green cards to legal immigrants who have received certain public benefits, like Medicaid, or who are deemed likely to do so in the future. That “public charge” rule would take effect Oct. 15 but has faced legal challenges.

The proclamation applies only to certain “immigrant visa” applicants

These are applicants at U.S. Embassies and Consulates abroad seeking visas to immigrate to the U.S., i.e., become permanent residents. The proclamation doesn’t apply to nonimmigrant (temporary) visa applicants. It does not apply to applicants in the U.S. filing a Form I-485, Application to Adjust Status, who are seeking to become permanent residents. It does not apply to persons who are already permanent residents. It also does not apply to certain categories of immigrant visa applicants, including:

• children of U.S. citizens;
• parents of U.S. citizens applying for IR-5 visas, “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 United States healthcare system;
• applicants under age 18, except if they are accompanying a parent who is immigrating and subject to the proclamation.

Applicants must have “approved health insurance” that will cover them within 30 days of entry to the U.S.

What is an “approved” plan? The proclamation lists:

1. an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985. It may not be feasible to obtain insurance within 30 days of arrival because under Federal law, employers may impost a waiting period of 90 days before new employees can be covered by employer-sponsored coverage.;
2. an unsubsidized health plan offered in the individual market within a State;
3. short-term limited duration insurance (STLDI) effective for a minimum of 364 days–or until the beginning of planned, extended travel outside the United States. Currently, such plans are available in about half of the states and do not cover individuals with pre-existing conditions;
4. a catastrophic plan. Currently, a catastrophic plan offered under the ACA covers only individuals under age 30 residing in the U.S. who qualify for a hardship or affordability exception.
5. a family member’s plan. Such plans may be available for spouses and children under age 27;
6. a medical plan under title 10 U.S. chapter 55, related to medical care for members of the U.S. military, veterans, and their dependents up to age 26, including TRICARE;
7. a visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days–or until the beginning of planned, extended travel outside the United States. Such plans often do not cover individuals with pre-existing conditions.
8. a medical plan under the Medicare program. Medicare is unavailable to immigrants unless they are more than 65 years old and have been living continuously in the U.S. for 5 years; or
9. any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

For persons over the age of 18, approved health insurance does not include coverage under the Medicaid program.

According to Reuters, it’s unclear whether applicants with no social security number will be able to buy such policies.

Reuters also reports that it’s not possible to buy insurance through California’s health insurance marketplace without being lawfully present in the U.S.

There is an exception for applicants with “the financial resources to pay for reasonably foreseeable medical costs”

The proclamation doesn’t specify how much money is enough, leaving this for the State Department to decide.

The proclamation is effective November 3, 2019

It applies to immigrant visas issued on or after this date. This short window for the State Department to craft and publish implementing rules seems to be designed to create chaos and delays in applications of people who have already waited years for their visas.

Ironically, It’s a “Mandate”

Remember the individual mandate that Americans buy health insurance, which was part of the Affordable Care Act (ACA)? Republicans vociferously opposed it as an assault on individual liberty. President Trump repealed it as part of the Tax Cuts and Jobs Act of 2017. Yet, the President has no qualms imposing such a mandate on immigrant visa applicants.

Backdoor Exclusion from Subsidized Plans

Subsidized health insurance through the Affordable Care Act is available to persons who earn at least 100 percent of the federal poverty level (139 percent of the poverty level in states that have expanded Medicaid) but not 400 percent of the poverty level. For a family of 4, that’s over $103,00 per year.

Subsidized health insurance is not available to people who qualify for Medicaid or the Children’s Health Insurance Program (CHIP).

Subsidized health insurance is available to permanent residents and most other noncitizens in the U.S. lawfully, such as F-1 students and H-1B temporary workers.

But subsidized health insurance obtained through the Affordable Care Act exchanges will not be considered an acceptable form of health insurance under the proclamation. In essence, the proclamation is a backdoor way to deny to deny eligibility.

Will the Proclamation Be Challenged in Court?

The proclamation cites to the following sections of the Immigration and Nationality Act as giving the President to make these rules:

Section 212(f): This provision was cited as the basis for the President’s Muslim travel ban. The provision states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Section 215(a): This vague provision states that “it shall be unlawful … for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

It is unclear whether these provisions are sufficient as a legal basis for the new rules.

Full Text of the Proclamation

Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System

Issued on Oct. 4, 2019

Healthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance or the ability to pay for their healthcare.  Hospitals and other providers often administer care to the uninsured without any hope of receiving reimbursement from them.  The costs associated with this care are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.  In total, uncompensated care costs — the overall measure of unreimbursed services that hospitals give their patients — have exceeded $35 billion in each of the last 10 years.  These costs amount to approximately $7 million on average for each hospital in the United States, and can drive hospitals into insolvency.  Beyond uncompensated care costs, the uninsured strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers.

Beyond imposing higher costs on hospitals and other healthcare infrastructure, uninsured individuals often use emergency rooms to seek remedies for a variety of non-emergency conditions, causing overcrowding and delays for those who truly need emergency services.  This non-emergency usage places a large burden on taxpayers, who reimburse hospitals for a portion of their uncompensated emergency care costs.

While our healthcare system grapples with the challenges caused by uncompensated care, the United States Government is making the problem worse by admitting thousands of aliens who have not demonstrated any ability to pay for their healthcare costs.  Notably, data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.  Immigrants who enter this country should not further saddle our healthcare system, and subsequently American taxpayers, with higher costs.

The United States has a long history of welcoming immigrants who come lawfully in search of brighter futures.  We must continue that tradition while also addressing the challenges facing our healthcare system, including protecting both it and the American taxpayer from the burdens of uncompensated care.  Continuing to allow entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental to these interests.

NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (8 U.S.C. 1182(f) and 1185(a)) and section 301 of title 3, United States Code, hereby find that the unrestricted immigrant entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.  I therefore hereby proclaim the following:

Section 1.  Suspension and Limitation on Entry.  (a)  The entry into the United States as immigrants of aliens who will financially burden the United States healthcare system is hereby suspended and limited subject to section 2 of this proclamation.  An alien will financially burden the United States healthcare system unless the alien will be covered by approved health insurance, as defined in subsection (b) of this section, within 30 days of the alien’s entry into the United States, or unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs.

(b)  Approved health insurance means coverage under any of the following plans or programs:

(i)     an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;

(ii)    an unsubsidized health plan offered in the individual market within a State;

(iii)   a short-term limited duration health policy effective for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States;

(iv)    a catastrophic plan;

(v)     a family member’s plan;

(vi)    a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;

(vii)   a visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States;

(viii)  a medical plan under the Medicare program; or

(ix)    any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

(c)  For persons over the age of 18, approved health insurance does not include coverage under the Medicaid program.

Sec. 2.  Scope of Suspension and Limitation on Entry.  (a)  Section 1 of this proclamation shall apply only to aliens seeking to enter the United States pursuant to an immigrant visa.

(b)  Section 1 of this proclamation shall not apply to:

(i)     any alien holding a valid immigrant visa issued before the effective date of this proclamation;

(ii)    any alien seeking to enter the United States pursuant to a Special Immigrant Visa, in either the SI or SQ classification, who is also a national of Afghanistan or Iraq, or his or her spouse and children, if any;

(iii)   any alien who is the child of a United States citizen or who is seeking to enter the United States pursuant to an IR-2, IR-3, IR-4, IH-3, or IH-4 visa;

(iv)    any alien seeking to enter the United States pursuant to an IR-5 visa, 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 United States healthcare system;

(v)     any alien seeking to enter the United States pursuant to a SB-1 visa;

(vi)    any alien under the age of 18, except for any alien accompanying a parent who is also immigrating to the United States and subject to this proclamation;

(vii)   any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State or his designee based on a recommendation of the Attorney General or his designee; or

(viii)  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.

(c)  Consistent with subsection (a) of this section, this proclamation does not affect the entry of aliens entering the United States through means other than immigrant visas, including lawful permanent residents.  Further, nothing in this proclamation shall be construed to affect any individual’s eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws and regulations of the United States.

Sec. 3.  Implementation and Enforcement.  (a)  An alien subject to this proclamation must establish that he or she meets its requirements, to the satisfaction of a consular officer, before the adjudication and issuance of an immigrant visa.  The Secretary of State may establish standards and procedures governing such determinations.

(b)  The review required by subsection (a) of this section is separate and independent from the review and determination required by other statutes, regulations, or proclamations in determining the admissibility of an alien.

(c)  An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

Sec. 4.  Reports on the Financial Burdens Imposed by Immigrants on the Healthcare System.  (a)  The Secretary of State, in consultation with the Secretary of Health and Human Services, the Secretary of Homeland Security, and the heads of other appropriate agencies, shall submit to the President a report regarding:

(i)   the continued necessity of and any adjustments that may be warranted to the suspension and limitation on entry in section 1 of this proclamation; and

(ii)  other measures that may be warranted to protect the integrity of the United States healthcare system.

(b)  The report required by subsection (a) of this section shall be submitted within 180 days of the effective date of this proclamation, with subsequent reports submitted annually thereafter throughout the effective duration of the suspension and limitation on entry set forth in section 1 of this proclamation.  If the Secretary of State, in consultation with the heads of other appropriate executive departments and agencies, determines that circumstances no longer warrant the continued effectiveness of the suspension or limitation on entry set forth in section 1 of this proclamation or that circumstances warrant additional measures, the Secretary shall immediately so advise the President.

(c)  The Secretary of State and Secretary of Health and Human Services shall coordinate any policy recommendations associated with the reports described in subsection (a) of this section.

Sec. 5.  Severability.  It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States.  Accordingly:

(a)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation and the application of its other provisions to any other persons or circumstances shall not be affected thereby; and

(b)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the failure to follow certain procedures, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec. 6.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

(i)    United States Government obligations under applicable international agreements;

(ii)   the authority granted by law to an executive department or agency, or the head thereof; or

(iii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 7.  Effective Date.  This proclamation is effective at 12:01 a.m. eastern daylight time on November 3, 2019.

IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of October, in the year of our Lord two thousand nineteen, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP