Update

Update 1: On November 2, 2019, the United States District Court for the District of Oregon entered a temporary restraining order (TRO) against the implementation of the Executive Order. The TRO remains in effect through November 30, 2019 [see blog].

Introduction

On October 4, 2019, President Donald Trump published a Presidential Proclamation invoking various sections of the Immigration and Nationality Act (INA) to restrict the entry of aliens as immigrants who cannot establish that they will not burden the United States healthcare system [PDF version]. The Proclamation is slated to take effect on November 3, 2019. If the Proclamation goes into effect in full, it will likely have a significant effect on the immigrant visa process, raising new burdens for prospective immigrants to gain admission into the United States.

In this post, we will review President Trump’s Proclamation and what it may mean going forward. We will update the post with information about legal developments relating to the Proclamation.

Proclamation Background

President Trump began his Proclamation by explaining that the use of emergency room services in non-emergency cases has a deleterious effect on the United States healthcare system. When individuals who use emergency room services lack the ability to pay, United States taxpayers reimburse the hospital for a portion of the uncompensated emergency care costs. President Trump stated that statistics indicate “that lawful immigrants are about three times more likely than United States citizens to lack health insurance.” From these data, he reasoned that lawful immigrants are statistically more likely to use emergency rooms for non-emergency health situations and thereby burden the United States healthcare system.

Proclamation and Legal Background

President Trump found that the unrestricted entry of immigrants who will either lack health insurance or the ability to pay for their healthcare is detrimental to the interests of the United States. Accordingly, he issued the Proclamation to place restrictions on their ability to enter the United States — with limited exceptions for certain classes of aliens.

President Trump invoked several authorities in support of his power to issue the proclamation. First, President Trump invoked the authority vested in him by the United States Constitution. Second, President Trump invoked section 212(f) of the INA, which vests in him the authority to deny or restrict the entry of classes of aliens when he deems that the entry of such aliens would be detrimental to the United States. Section 212(f) was the primary authority relied upon by President Trump in issuing the “travel ban” against nationals of several countries [see article]. Third, President Trump invoked section 215(a) of the INA, which, among other things, bars aliens from departing or entering the United States except under reasonable rules, regulations, and orders. Fourth, President Trump noted that 3 USC 301 provided him with the authority to delegate the implementation of this Proclamation to the relevant department of agency heads in his administration.

Prospective Immigrants Affected by the Proclamation

Section 1(a) of the Proclamation suspends the entry of aliens into the United States as immigrants who will financially burden the United States healthcare system. Section 2(a) makes clear that the Proclamation “appl[ies] only to aliens seeking to enter the United States pursuant to an immigrant visa.” Section 2(c) provides that “this proclamation does not affect the entry of aliens entering the United States through means other than immigrant visas, including lawful permanent residents.” The proclamation also has no bearing on ‘any individual’s eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture…” Section 2(b) of the proclamation specifically exempts several other classes of immigrants from the proclamation:

Any alien who holds a valid immigrant visa that was issued prior to the effective date of the proclamation, November 3, 2019.
Any alien seeking to enter the United States with 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 or children. These refer to special immigrant visa classifications for certain Afghanis and Iraqis who rendered assistance to the United States military during the wars in Afghanistan and Iraq.
Any child of a United States citizen who is seeking to enter the United States with an IR-2, IR-3, IH-3, or IH-4 visa. This covers children of United States citizens generally and several immigrant visa classifications for adoptive children.
Any alien seeking to enter the United States with an IR-5 visa, provided that the alien or the alien’s sponsor demonstrates that the alien’s healthcare will not impose a substantial burden on the United States healthcare system. This category refers to parents of U.S. citizens over the age of 21. Unlike several of the other exceptions, the alien and the sponsor must still establish that the alien’s healthcare will not substantially burden the United States healthcare system.
Any alien seeking to enter the United States with an SB-1 visa. The SB-1 category is for returning permanent residents.
Any alien under the age of 18, except for an alien accompanying a parent who is also immigrating to the United States and subject to the proclamation. Thus, aliens under the age of 18 are not subject to the proclamation unless they are accompanying a parent who is seeking to immigrate to the United States and is subject to the proclamation.
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 by the Attorney General or his designee.
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.

Defining Financial Burden to the United States

In order to be permitted to enter, aliens affected by the proclamation will have to establish that they will not financially burden the United States healthcare system. Section 1(a) provides that an alien may overcome the presumption that he or she will financially burden the United States healthcare system by establishing that he or she will be covered by health insurance within 30 days of his or her entry into the United States, or that he or she possesses the financial resources to pay for reasonably foreseeable medical costs. Section 1(b) of the proclamation lists the types of approved health insurance for purpose of establishing that the alien will not financially burden the United States healthcare system:

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 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 of the 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.

Section 1(c) makes clear that “[f]or persons over the age of 18, approved health insurance does not include coverage under the Medicaid program.” Thus, for adults over the age of 18, evidence that the adult subject to the proclamation would be covered by Medicaid would lead to a finding that he or she would financially burden the United States healthcare system.

Separate from Other Requirements

Section 3(b) states that the review of whether an alien would financially burden the United States healthcare system is separate and independent from any other review requirements under the INA, its implementing regulations, or applicable presidential proclamations. Thus, for example, the provisions of this proclamation are entirely distinct from other potential bars to entry, such as a review of whether an alien is inadmissible on public charge grounds.

Implementing the Proclamation

Section 3(a) states that an alien subject to the proclamation must establish, to the satisfaction of a consular officer, that he or she would not financially burden the United States healthcare system before the consular officer may adjudicate and issue an immigrant visa. Thus, while the proclamation is a bar on certain individuals entering the United States as immigrants, it will primarily be adjudicated at the visa application stage abroad. President Trump provided that the Secretary of State may establish standards and procedures for implementing the proclamation.

Consequences for Circumventing the Proclamation

Section 3(c) provides that an alien who attempts to circumvent the proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be deemed to be a removal priority by the Department of Homeland Security (DHS).

Reports

In section 4, President Trump directed the Secretary of State, in consultation with the Secretary of Homeland Security and the Secretary of Health and Human Services, to submit a report on the issues discussed in the proclamation within 180 days, and then annually thereafter. Along with the first report, the Secretary of State will provide recommendations to the President regarding whether the proclamation remains necessary or whether changes to the proclamation are needed.

Severability

Section 5 of the proclamation states that if a court enjoins any portion of the proclamation, agencies should deem the unaffected portions of the proclamation severable and work to enforce the proclamation to the maximum extent possible. This section is designed to ensure that the proclamation can be enforced to its greatest extent even if parts of it are enjoined.

Conclusion

President Trump’s proclamation will apply solely to those seeking to enter the United States with immigrant visas obtained after November 3, 2019, subject to limited exceptions. In some cases, the proclamation may provide a substantial hurdle to an alien seeking to enter the United States as an immigrant. In other cases, the alien and, if applicable, his or her sponsor, may be able to more easily satisfy the proclamation’s requirements. The proclamation is more likely to burden affected family-sponsored immigrant visa applicants than employment-based applicants due to the nature of employment-based visas.

As we noted, the proclamation is likely to face legal challenges and may be, for a time, blocked in part or in full by Federal courts. Until such time as that may occur, however, prospective immigrants should plan as if the proclamation will take effect on November 3, 2019.

An alien seeking an immigrant visa for him or herself or for a relative should always consult with an experienced immigration attorney for case-specific guidance throughout the process. An experienced attorney will be able to assist an alien in establishing that he or she satisfies the requirements of President Trump’s instant proclamation — when it takes effect — as well as other applicable requirements in the states, regulation, and agency policy guidance.