At a glance

  • Starting November 3, applicants for immigrant visas will be required to show that they will have health insurance within 30 days of entry to the United States or the financial resources to pay for reasonably foreseeable medical expenses, according to a presidential proclamation.
  • Nonimmigrant visa applicants, unmarried children of U.S. citizens, parents of adult U.S. citizens, and foreign nationals who obtain an immigrant visa before November 3 are among those exempt from the requirement.
  • A federal court could block the new requirement either prior to or after its November 3 effective date. A lawsuit challenging the proclamation was filed just this week.

The issue

As a reminder, starting November 3, the State Department plans to suspend the issuance of immigrant visas to foreign nationals who cannot demonstrate that they will obtain health insurance or otherwise pay for their healthcare expenses in the United States, pursuant to a presidential proclamation issued in early October. An Oregon federal court could halt implementation of the new requirement while litigation challenging the proclamation is ongoing. Such an injunction could be issued before or after November 3.

A closer look

Starting next week, foreign nationals applying for immigrant visas at U.S. consulates abroad must prove either that they will acquire approved health insurance within 30 days of their entry to the United States or that they will have the means to pay for reasonably foreseeable medical expenses while in the United States. Failure to do so will result in the denial of their visa request. Approved health insurance plans include an employer-sponsored plan, a family-member's plan, Medicare, certain short-term plans, and catastrophic plans.

If an affected applicant will not have access to an approved health care plan, the proclamation does not provide details on how consular officers will make a determination as to whether the person has the means to pay for reasonably foreseeable health care costs.

The State Department has sought approval to collect insurance information from immigrant visa applicants. The agency request states that information will be requested verbally by consular officers at the immigrant visa interview, but the agency has also requested approval of a short written questionnaire. The pending questionnaire seeks written attestations from the applicant; it gives no indication as to whether or what documentary evidence will be required.

Who is subject to the new requirement

The new requirement applies to immigrant visa applicants at a U.S. consulate abroad, including employment-based, family-based and Diversity Visa applicants. However, the following immigrant visa applicants are exempt:

  • Foreign nationals holding an immigrant visa issued before 12:01 a.m. eastern daylight time, November 3, 2019, the rule's effective date;
  • Most unmarried children of U.S. citizens who are under the age of 21, including orphaned children adopted abroad and orphaned children to be adopted in the United States;
  • Children under the age of 18 unless they are accompanying a parent who is subject to the proclamation;
  • Parents of U.S. citizens who are 21 or older, provided that the adult child can demonstrate that the parent's healthcare needs will not pose a substantial burden on the U.S. healthcare system;
  • Returning residents;
  • Iraqi or Afghan translators and interpreters, as well as Iraqis and Afghans who worked for or on behalf of the U.S. government;
  • Foreign nationals whose entry would further U.S. law enforcement endeavors; and
  • Any foreign national whose entry would be in the national interest.

The proclamation will not apply to applicants applying to adjust status from within the United States, or foreign nationals applying abroad for nonimmigrant visas, such as B-1/B-2, H-1B, L-1A/L-1B or O-1 visas.

What's next

Until further notice, affected immigrant visa applicants should prepare for implementation of the health insurance requirement on November 3, 2019.

Though the State Department has not provided guidance on whether or what kind of documentation is required in order to comply, immigrant visa applicants should bring evidence of compliance to their immigrant visa interview. This may include evidence of the approved health insurance plan or, to the best of the applicant's ability, financial documentation establishing their ability to pay for reasonably foreseeable medical costs.

Family-based immigrant visa applicants and diversity lottery applicants are likely to be most affected by the new requirement because employment-based applicants are more likely to have access to employer-sponsored health insurance. However, employment-based applicants are reminded that they are indeed subject, and will be required to provide detailed information on any employer-sponsored insurance.

Fragomen is closely tracking the implementation of the presidential proclamation and related litigation and will provide updates as new information becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.