Health Insurance Requirement Temporarily Blocked
By Reuben Seguritan
On October 4, 2019, President Trump issued a proclamation which blocks immigrants without insurance and those who cannot pay the costs of their health care from entering the United States beginning on November 3, 2019. This restriction would be different and would operate independently of the “public charge rule” which prevents immigrants who used or are using public benefits from getting green cards or US permanent residence status.
On November 2, 2019, Judge Michael Simon of the Federal District Court in Portland, Oregon issued a nationwide temporary restraining order that prevents the government from implementing the October 4, 2019 proclamation. This restraining order is valid for 28 days. The court will hold a hearing on November 22, 2019 to determine whether Judge Simon will issue a preliminary injunction in the case. Judge Simon said in his decision that the proclamation has the potential to cause irreparable harm because immigrants will be separated from their families and there will be a delay in obtaining a visa to applicants who are otherwise entitled to visas.
This rule requiring health insurance would affect family-based immigrant visa applicants, including spouses of US citizens and lawful permanent residents (LPR); children of LPRs who are 18-21 years old; children under 18 years old; adult sons and daughters of US citizens and LPRs; people with diversity visas or employment-based immigrant visas; and some religious workers. The rule will also apply to parents of US citizens, unless they can demonstrate that their health care will not impose a substantial burden on the US health care system. They are required to show proof that they will be covered by health insurance products within 30 days after entering the US or have the financial capacity to pay out-of-pocket for “reasonably foreseeable medical expenses”.
Any applicant or intending immigrant who circumvents the proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.
The health insurance which will be compliant with the new proclamation must be “approved”. The “approved” health insurance forms under the proclamation are: employer-sponsored health plans, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985; unsubsidized plans purchased on the individual market within a State; non-Affordable Care Act (ACA)-compliant short-term health plans authorized by the US government; catastrophic plans; short-term limited duration health policy effective for a minimum of 364 days – or until the beginning of planned, extended travel outside the US; family member’s plans; TRICARE plans or other coverage for military members and veterans; visitor health insurance plans; medical plan under the Medicare program; other health plans as determined by the US Department of Health and Human Services or his designee. Medicaid is approved for children 18 years old and younger, but subsidized ACA plans are not approved for either adults or children.
The following immigrants are exempt from the health insurance requirement: anyone issued a visa prior to the effective date November 3, 2019; LPRs returning after a long absence; unmarried children and adoptees of US citizens; people seeking Iraq/ Afghani Special Immigrant Visas; children under the age of 18, unless accompanying parents are subject to the health insurance requirement; parents of adult US citizens if they can demonstrate to the satisfaction of the consular officer that their health care will not impose a substantial burden on the US health care system; and people whose entry would advance law enforcement objectives or would be in the national interest. The proclamation would not apply to asylum and refugee status seekers, those withholding of removal applicants, or applicants seeking protection under the Convention Against Torture.
President Trump justified his proclamation by citing Section 212(f) of the Immigration and Nationality Act (INA) which authorizes the president to suspend the entry into the US of any class of migrants if the president finds that their entry would be detrimental to the interests of the US. He stated that immigrants and applicants who are uninsured are detrimental to the interests of the US and are a burden to the government, and disrupt the availability of healthcare benefits to US citizens.
Critics of the proclamation point out that the majority of uninsured people in the US are US citizens and penalizing intending immigrants before they even arrive in the US will not solve the problems with the US health care system. The proclamation also runs counter to the Affordable Care Act which aims to provide affordable health care coverage to everyone who is lawfully present in the US.