A federal court in Oregon has temporarily blocked President Donald Trump’s proclamation that would deny immigrant visas to applicants on the basis of their ability to cover their health costs. The court issued the temporary restraining order Saturday, a day before the proclamation was to take effect.

Key points:

  • The court order is in place for 28 days to give the court time to hear arguments on whether to extend the temporary block and issue an injunction that would last for the duration of the lawsuit. The court will hear arguments on Nov. 22.
  • For now, the government is prevented from implementing or enforcing the proclamation. The proclamation would require that immigrant visa applicants abroad prove to a U.S. consular officer that they will be covered by an “approved” health insurance plan within 30 days of entering the U.S. or have sufficient funds to cover “reasonably foreseeable” medical expenses.

Background: President Trump issued the proclamation on Oct. 4, to take effect Nov. 3. Immigrant visa applicants would be denied visas unless they could prove they would be enrolled in an “approved” plan or could pay for their medical costs. The types of “approved” health plans listed in the proclamation were limited to: 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.

The State Department issued an emergency notice and a draft of its health insurance questionnaire on Oct. 29. The lawsuit was filed the next day by the American Immigration Lawyers Association, a nonprofit organization and seven U.S. citizens with approved immigrant petitions for family members who would likely be denied visas under the proclamation.

The court found that at this early stage of the lawsuit, the families were likely to prove that the proclamation conflicts with the Immigration and Nationality Act’s public charge provisions and decades of agency interpretation and that the families would be irreparably harmed if they were separated because of the denial of a visa to which they would otherwise be entitled.

BAL Analysis: The order temporarily halts the proclamation, and, for now, immigrant visa applicants will not be subject to the new questionnaire or the new criteria of proving their ability to pay healthcare expenses. The court will decide within 28 days whether to issue an injunction that blocks the proclamation for the duration of the lawsuit.

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

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