UPDATE – Nov. 2, 2019: A US judge has blocked Trump’s new health insurance rule for 28 days. Then there will be further court hearings and more court orders. So for now green card applicants abroad do NOT have to arrange health insurance.
A new health insurance requirement for green card applicants abroad is scheduled to go into effect Nov. 3. Presidential Proclamation 9945, issued Oct. 4, bars immigrants who “will financially burden the U.S. healthcare system.” It says applicants must show they will have acceptable health insurance coverage within 30 days of entering the U.S., or have the financial resources to pay for reasonably foreseeable medical costs. “Reasonably foreseeable medical expenses” are defined as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.” The government itself estimates this rule will affect 450,000 applicants per year.
If the government decides the applicant doesn’t meet this requirement the green card will be denied.This week several organizations filed a lawsuit in federal court in Oregon that challenges the new requirement and asked for a temporary restraining order (TRO) to prevent irreparable harm.
Here’s the list of acceptable policy types:
(1) an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
(2) an unsubsidized health plan offered in the individual market within a State;
(3) 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;
(4) a catastrophic plan;
(5) a family member’s plan;
(6) a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
(7) 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;
(8) a medical plan under the Medicare program; or
(9) any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.
There are many problems and ambiguities with this list. For example, (7) and (9) above require “adequate coverage.” What will be considered adequate? Many visitor health insurance plans have coverage limits of $50,000 which will not go far in the U.S. medical system. Coverage under other above plans will take more than 30 days to arrange due to bureaucratic issues. If the applicant doesn’t have or can’t get health insurance, what financial resources will be acceptable? How will the Department of State interpret these rules?
Who must meet the new rule?
- spouses of U.S. citizens and lawful permanent residents (LPRs) (green card holders);
- children of LPRs who are 18-21 years old;
- children under 18 traveling with a parent who is also immigrating;
- adult sons and daughters of U.S. citizens and LPRs;
- people with diversity visas or employment-based immigrant visas; and some religious workers.
- parents of U.S. citizens if they can’t show that their health care will not impose a substantial burden on the U.S. health care system.
Who is exempt from the new requirement?
• anyone issued a visa prior to the effective date (Nov. 3, 2019)
• LPRs returning after a long absence;
• unmarried children and adoptees of U.S. citizens
• people seeking Iraq/Afghani Special Immigrant visas
• children under age 18, unless accompanying parents subject to the proclamation
• parents of adult U.S. citizens, if they can demonstrate to the satisfaction of the consular officer that their health care will not impose a substantial burden on the U.S. health care system
• people whose entry would advance law enforcement objectives or would be in the national interest;
The proclamation states that it should not be construed to affect any individual’s eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture.
This is a completely new requirement with great impact, but it was rolled out in a rush in 30 days, for no apparent reason. The Department of State, who interviews and adjudicates green card applicants abroad, issued a new draft Form DS-5541 Immigrant Healthcare Questionnaire, on Oct. 30, along with a request for comments just days before the rule would go into effect. They gave commenters 2 days to respond. The normal amount of time is 60 days to comment, and the bare minimum required by statute is 30 days. The DOS stated that applicants will be asked about their health insurance at their interview, but the draft form has now been posted asking for written information, so it is unclear what applicants need to do. Much of the new rules are unclear.
Stay tuned. Hopefully the courts will stop the rule. However, we’ve seen embassies ask for proof of health insurance even before the new rule was announced. The Department of State has great latitude in approving or denying applications and there is little that can be done if the application is denied.
