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Analysis of Trump's Visa Proclamation

October 07, 2019 (5 min read)

Stuart Anderson, Forbes, Oct. 7, 2019

"On Friday, October 4, 2019, Donald Trump issued a far-reaching presidential proclamation that would bar new immigrants from entering the United States without health insurance. To better understand this new restriction on legal immigrants, I interviewed William Stock, a founding member of Klasko Immigration Law Partners.

Stuart Anderson: What does the presidential proclamation do?

William Stock: The proclamation excludes from the United States new lawful immigrants who cannot show the ability to purchase unsubsidized commercial health insurance within 30 days of entry, unless exceptions apply. It will prevent otherwise eligible immigrants coming in from abroad from being issued visas to enter the U.S. if they lack the financial ability to purchase unsubsidized health insurance. That means that prospective immigrants potentially could be barred from the United States unless they can find a way to purchase health insurance outside of the Affordable Care Act (ACA) exchanges.

Anderson: Doesn’t that mean individuals and families may need to purchase health insurance in the United States, even though they may still be physically outside of America?

Stock: Clearly one way to satisfy the requirement of being able to purchase health insurance is to have actually purchased health insurance, though it is not yet clear whether it will be necessary to do so. It might be possible to satisfy consular officers, for example, by showing sufficient financial resources to purchase insurance after one arrives in the United States.

Anderson: There’s an exception for someone “who is the child of a United States citizen” and children adopted by U.S. citizens. But which types of immigrants would be most affected by the new requirement?

Stock: Because immigrant visa issuance is over 80% family-based immigrants, the proclamation will disproportionately impact those immigrating based on family ties, rather than employment-based immigrants. (Employment-based immigrants usually adjust status inside the United States.) Another significant impact will be on winners of the Diversity Visa Lottery, who are predominately from African countries, as most of those selected through that program enter the United States with immigrant visas rather than being able to adjust status in the United States.

Anderson: Will it affect temporary visa holders, such as H-1B visa holders, or only immigrants?

Stock: As released, the proclamation only affects new immigrants (those issued an immigrant visa on or after November 3, 2019, the effective date of the proclamation). It does not cover those entering on any temporary visa, including H-1B visa holders, L-1 intracompany transferees, international students and scholars, visitors for business, tourists or entries for any other temporary purpose. It also does not cover refugees, though the number of new refugees being admitted to the United States will be set at its lowest level ever for next year through a separate action.

Anderson: What authority is the president using?

Stock: The bar uses the president’s authority to bar classes of foreign nationals from the United States when their entry has been deemed “detrimental to the interests of the United States.” Like the earlier travel ban, this proclamation is an unprecedented expansion of the authority delegated by Congress to the president in Section 212(f) of the Immigration and Nationality Act. That provision allows the president to act quickly and suspend the entry of foreign nationals in a foreign policy crisis – or to pressure a foreign government, as when past presidents have suspended entry of human rights abusers under United Nations travel sanctions, or certain government officials and their families of countries under other sanctions. 

Here, the president is using the ban, in effect, to increase the income level required of new immigrants without asking Congress to do so. The Immigration and Nationality Act already bars those likely to become a “public charge,” and provides that family-sponsored immigrants must also be supported by a sponsor who can financially support them at 125% of the federal poverty level. The new proclamation also provides a de facto ban to new immigrants from their Congressionally-mandated eligibility for premium support through the Affordable Care Act when they purchase private insurance.

Anderson: Do you expect there will be legal challenges?

Stock: I have no doubt that groups representing immigrants, and probably some states, will sue to block the proclamation. While the Supreme Court allowed the third version of the president’s travel ban to take effect, deferring to the national security justification underlying the proclamation, it is not clear that this proclamation will get the same deference from the courts.

For one, the proclamation does not have a clear connection between the harm alleged to be “detrimental” to the United States (uninsured patients in America’s healthcare system) and the means used (barring immigrants who otherwise would be covered by health insurance through the Affordable Care Act exchanges).

For another, the proclamation directly contradicts certain provisions of both the Immigration and Nationality Act and the Affordable Care Act. If this usage of Section 212(f) is allowed by the courts, the president could continue to use Section 212(f) to greatly restrict legal immigration to the United States, even in Congressionally-authorized categories. 

Anderson: What advice do you have for immigrants?

Stock: Anyone who is able to adjust status from within the United States, rather than filing for an immigrant visa, should do so, because adjustment of status is outside the scope of the proclamation. Also, anyone able to get their immigrant visa this month should not delay their application and should review their documentary qualification with an immigration lawyer to be sure they can receive their visa before November 3.

The proclamation raises many questions: Will it be enough for new immigrants to show a certain level of assets that they could use to purchase insurance, for example, or will they, in practice, have to actually purchase policies somehow? How will new immigrants still abroad – who by definition don’t have Social Security numbers or a U.S. health history – be able to purchase insurance? While the proclamation says “a catastrophic plan” would qualify, does that mean all minimal coverage, high-deductible plans will be deemed sufficient?

Since the proclamation exempts those with employer-based coverage, will a job offer be sufficient to overcome the ban? Until detailed guidance is released and adjudications begin under the proclamation, it is not clear whether or how adjudications of immigrant visa petitions will actually be affected.

Much of the practical effect of this proclamation will have to await implementing instructions from the State Department to consular posts. This is potentially a major restriction on legal immigration that Congress never authorized."