Oct, 18, 2019

New Policy Regarding Uninsured Noncitizens

Allison Orris and Patricia Boozang, Manatt Health


On October 4, the President issued a proclamation that requires immigrants to show that they have health insurance or can pay medical expenses out of pocket in order to receive a visa. The proclamation will impact individuals applying for a visa with the Department of State (DOS) through consular offices abroad. By comparison, the public charge rule, released by the Department of Homeland Security (DHS) over the summer, and currently blocked by temporary preliminary injunctions issued by federal courts, impacts DHS determinations at the point of entry and when immigrants apply for green cards from within the United States.

Proclamation Prohibiting Immigration by the Uninsured

The White House issued a proclamation on the evening of October 4 that will bar immigrants from receiving visas unless they prove that they will have health insurance within 30 days of entering the country or have the financial resources to cover reasonably foreseeable medical costs.[1] The proclamation notes that immigrants are more likely than citizens to be uninsured, and argues that these uninsured individuals strain the nation’s health care infrastructure, burden state and federal programs, and pass high uncompensated care costs on “to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.” Finding that the entry of uninsured, low-income individuals would be detrimental to the national interest, the President suspended their immigration by invoking Section 212(f) the Immigration and Nationality Act. This order will go into effect without public comment on November 3.

The proclamation will impact immigrants who apply for visas to enter the U.S. after the effective date, and will primarily affect persons seeking family-based visas.[2] The policy will not apply to current visa holders, children and adoptees of U.S. citizens, other select visa applicants,[3] lawful permanent residents (LPRs, or green card holders), or applicants for asylum or refugee status. The proclamation also sets out specific limitations on which forms of insurance “count” for purposes of entry: valid insurance will include employer-sponsored coverage, Medicare, unsubsidized insurance in the Affordable Care Act (ACA) marketplace, catastrophic coverage, short-term limited duration plans, TRICARE, and other policies. Valid coverage will not include Medicaid for adults over the age of 18 or subsidized marketplace coverage.[4]

Like the DHS public charge rule, the order will likely alter who will be able to immigrate to the United States with potentially disproportionate repercussions for low-income families. The Migration Policy Institute (MPI) estimated that two-thirds of recent adults with green cards would not meet the President’s proclamation test. MPI also noted that the proclamation would hamper immigration by middle-income immigrants, many of whom may be unable to afford unsubsidized marketplace plans. Buying unsubsidized plans requires a household to have an annual income of over 400 percent of the federal poverty level (FPL), or roughly $103,000 per year for a family of four.

The proclamation could also have consequences for health care consumers and providers within our borders. Because the order excludes subsidized marketplace coverage it could lead immigrants to forgo subsidized plans and instead enroll in short-term or catastrophic coverage, as these plans often have premiums that are less expensive and aren’t implicated under the order. This shift in coverage could subvert the stability of marketplace risk pools and possibly drive up premiums over time. Meanwhile, immigrant families in short-term and catastrophic plans would be exposed to medical underwriting, lifetime or annual caps, and inadequate coverage if they face substantial medical needs. The result would be greater financial risk for immigrant families as well as higher uncompensated care costs for health providers.

Little information has been released about how immigrants will be asked to demonstrate their compliance with the proclamation, which states that immigrants will be asked to establish their compliance with these requirements “to the satisfaction” of DOS consular officers. Manatt will continue to monitor DOS implementation of the order in the days ahead.

[1] Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United

States Healthcare System (Oct. 4, 2019), https://www.whitehouse.gov/presidential-actions/presidentialproclamation-suspension-entry-immigrants-will-financially-burden-united-states-healthcare-system.

[2] Such as spouses and fiancées of citizens and legal permanent residents (LPRs); children of LPRs who are 18-21 years old; children under 18 if travelling with a parent who is also immigrating; adult children of citizens and LPRs; people with diversity visas or employment-based immigrant visas; some religious workers; and parents of citizens who cannot show that their health care will not impose a substantial burden on the U.S. health care system. See National Immigration Law Center, Summary: President’s Proclamation Requiring Immigrants to Have Health Insurance (2019), https://www.nilc.org/wp-content/uploads/2019/10/proclamation-health-insurance-2019.pdf

[3] Such as people seeking Iraq/Afghani Special Immigrant visas, children under age 18 (unless accompanying parents are subject to the proclamation); parents of adult citizens, if they can demonstrate that their health care will not impose a substantial burden on the U.S.; and people whose entry would advance law enforcement objectives or be in the national interest. Id.

[4] While many immigrants face a 5-year bar to eligibility for Medicaid, most lawfully present immigrants are eligible for marketplace subsidies without such a waiting period. As a result, most lawfully present immigrants are eligible for marketplace subsidies under 100% FPL, regardless of whether or not a state has expanded Medicaid.