Health insurance proclamation set to take effect as litigation aims to halt it

A group of immigrant rights organizations has filed a lawsuit to stop the Trump administration from implementing a proclamation that would restrict the entry of immigrants on the basis of their ability to pay for health care. For now, the new requirement is expected to take effect Sunday, Nov. 3.

Key points:

• The proclamation requires immigrant visa applicants to be (1) covered by an approved health insurance policy within 30 days of entering the U.S. or (2) possess the financial resources to pay for reasonably foreseeable medical costs. Consular officials must be satisfied that applicants meet the requirement before issuing immigrant visas. The proclamation states that the State Department may establish procedures for adjudicating the new requirements.
• The requirement does not apply to individuals holding a valid immigrant visa issued before Nov. 3 or nonimmigrant visa applicants. The proclamation also exempts certain immigrant visa applicants, including children of U.S. citizens; parents of U.S. citizens who can prove that their health will not impose a substantial burden on the U.S. healthcare system; those whose admission is in the national interest of the U.S.; and other categories listed in the proclamation.
• “Approved” health insurance plans are listed in the proclamation and may include an employer-sponsored policy, Medicare, an individual unsubsidized policy, a catastrophic plan, a family member’s plan, a short-term or visitor plan that covers the duration of the immigrant’s stay, and other plans deemed to provide adequate coverage by the Secretary of Health and Human Services
• On Oct. 29, the State Department published a notice and a draft Form DS-5541, Immigrant Healthcare Questionnaire.
• The American Immigration Lawyers Association (AILA), the Justice Action Center, Innovation Law Lab and others filed a lawsuit Wednesday in federal court in Oregon to stop the proclamation from taking effect. “The Proclamation seeks to unilaterally rewrite this country’s immigration laws,” the lawsuit said, “imposing a new ground of inadmissibility that Congress has expressly rejected, and creating requirements that will be extremely difficult, or impossible, for most otherwise qualified immigrant visa applicants to satisfy.”

BAL Analysis: The State Department is expected to start requiring the new form on Nov. 3, but it remains to be seen whether the litigation will be successful in blocking implementation. The proclamation does not apply to nonimmigrant visa applicants or those entering the U.S. by means other than an immigrant visa, including lawful permanent residents. BAL will provide updates on the litigation, including the possibility that implementation of the proclamation will be delayed.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.