Proclamation to Introduce New Health Insurance Requirement for Certain Immigrants

Earlier this month, President Trump issued Proclamation 9945, titled "Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans." Effective November 3, 2019 at 12:01 a.m. eastern daylight time, the proclamation aims to suspend the entry of immigrants "who will financially burden the United States healthcare system." Citing the proposition that allowing entry of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental to U.S. interests, the new policy asserts that an individual seeking to immigrate to the United States will be deemed someone who "will financially burden the United States healthcare system" unless the individual will be covered by approved health insurance within 30 days of entering the country or unless the person possesses the financial resources to pay for reasonably foreseeable medical costs. If applicants are unable to show they meet the requirements to the satisfaction of the consular officer, their immigrant visa applications can be denied.

The proclamation defines "approved health insurance" as coverage under any of the following plans or programs:

an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
an unsubsidized health plan offered in the individual market within a State;
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;
a catastrophic plan;
a family member's plan;
a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
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;
a medical plan under the Medicare program; or
any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

In addition, for anyone over the age of 18, coverage under the Medicaid program will not be considered as approved health insurance.

Importantly, the policy will only apply to those individuals seeking an immigrant visa by applying at an Embassy or Consulate abroad. It will not apply to individuals already present in the United States who seek lawful permanent residence through the "adjustment of status" process. The proclamation will also not apply to the following groups:

anyone holding a valid immigrant visa issued before the effective date of this proclamation;
anyone 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;
anyone 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;
anyone seeking to enter the United States pursuant to an IR–5 visa, provided that the individual or the individual's sponsor demonstrates to the satisfaction of the consular officer that the individual's healthcare will not impose a substantial burden on the United States healthcare system;
anyone seeking to enter the United States pursuant to a SB–1 visa;
anyone under the age of 18, except for anyone accompanying a parent who is also immigrating to the United States and subject to this proclamation;
anyone 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
anyone whose entry would be in the national interest, as determined by the Secretary of State or his designee on a case-by-case basis.

It remains to be seen how the new policy will be applied in practice and what types of documentation will be deemed sufficient to show you will be covered by an approved health insurance plan or have the means to pay for reasonably foreseeable medical costs. More information and insights should be available as the Department of Statement starts to implement the requirements at the consular posts starting November 3rd. On October 30, 2019, the American Immigration Lawyers Association and other interested parties filed suit in the U.S. District Court for the District of Oregon to halt implementation of the proclamation, and additional challenges may be filed in court in the coming weeks.