A 28-day Temporary Restraining Order (TRO) is the latest development in the Trump Administration’s efforts to revamp “public charge” financial immigration provisions. The TRO, issued on November 2, halts a Presidential Proclamation conditioning immigration eligibility upon health insurance coverage. The Proclamation is part of an effort to restrict legal US immigration through reinterpretation of long-established provisions which tie financial self-sufficiency and/or financial support to immigration eligibility. Under these restrictions, individuals who are likely to be a financial burden to the US government are inadmissible to the US and, accordingly, not permitted to immigrate. The scope and status of the efforts to control US immigration levels through changes to the public charge provisions are outlined below.

Presidential Proclamation: Suspending Entry Based Upon Prospective Healthcare System Burden

This Presidential Proclamation bears similarity, both in its expansiveness and its legal basis, to the Executive Order “travel bans” issued at the outset of the Trump presidency. The premise of the Proclamation is that our US healthcare system is burdened by people who are not covered by health insurance and that immigrants are disproportionately represented amongst those in the US who lack this coverage. Accordingly, to avoid this tax payer burden, the Proclamation requires anyone seeking an immigrant visa at a US consulate to either: have appropriate health coverage; be able to obtain coverage within 30 days of entry; or have sufficient funds to cover anticipated medical costs.

The Proclamation sets out some guidance as to what types of insurance plans would be sufficient for this purpose. The US Department of State (DOS) issued instructions to immigrant visa applicants without insurance to provide evidence “to the consular officer’s satisfaction” at the time of their visa interview establishing that they will have appropriate health insurance coverage within 30 days of entering the US or that they have enough financial means to pay for “reasonably foreseeable medical costs.” Absent satisfactory proof of these requirements, the immigrant visa cannot be granted.

Scope: Immigrant Visas at US Consulates

The Proclamation applies to immigrant visa applications made at the US Consulates abroad. Immigrant visas allow permanent immigration to the US. Individuals granted immigrant visas are eligible for admission to the US as US permanent residents (Green Card holders). The Proclamation provides some exceptions within this group:

  • Visa applicants for temporary admission to the US, such as students, visitors, and temporary employment categories, are not subject to the Proclamation’s requirements.
  • Green Card applicants processing entirely from within the US (Adjustment of Status) are not subject to the Proclamation’s requirements.

Status: Temporary Restraining Order Through November 2019

The US District Court for the District of Oregon issued a TRO enjoining the enforcement of the Proclamation for a 28-day period. The next hearing in the matter is scheduled for November 22.

In granting the TRO, the Court found that the Proclamation is in direct conflict with the public charge provisions of the Immigration and Nationality Act (INA). Moreover, the Court found that Congress directly rejected the core premise of the Proclamation through the INA’s specifications of the circumstances under which a person can be found to be a financial burden. The INA sets forth a list of factors which must be considered when determining whether a person is “likely to become a public charge.” The INA mandates the application of a totality of the circumstances test, balancing “at a minimum” the factors of: age, health, family status, assets, resources, financial status, education, and skills. In light of this, the Court found that reliance on health insurance as a sole factor in the public charge determination is precluded under the INA. The Court also found that the insurance options set forth in the Proclamation are legally or practically impossible for many of the plaintiffs in the case.

Department of Homeland Security Regulatory Changes: On Hold Nationwide

Separate from the Presidential Proclamation is a Department of Homeland Security (DHS) comprehensive re-write of regulations interpreting the INA public charge provisions. These regulatory changes were scheduled to go into effect on October 15, 2019, but are currently on hold nationwide as the result of multiple US District Court injunctions issued on October 11, 2019.

Scope: Adjustment of Status and Extension of Status within US

The DHS regulations are comprehensive in scope and apply to virtually all case types – immigrant and non-immigrant – filed within the US. The highlights of the revised regulations include the introduction of a 19-page Declaration of Self-Sufficiency financial disclosure form. Under the revised regulations, this Declaration must be completed by foreign nationals as a component of most Adjustment of Status (Green Card) cases filed with the US Citizenship and Immigration Services (USCIS). Foreign national applicants for extension or change of their temporary, non-immigrant, status in the US face disclosure requirements limited to their receipt of or designation as qualified for specified public benefits.

Underlying these changes is a revision in the definition of what it means to be a public charge. The focus in the revised regulation is tied to the receipt of or assessed “likelihood” of receipt of an expanded list of public benefits. Under existing regulations and interpretations, individuals only run afoul of the public charge provisions when they are primarily dependent (or likely to become so) on specified cash public benefits programs (or institutionalized at government expense). The new regulation contains a far more expansive definition, not limited to cash benefits and with a stricter legal standard.

For family-based Green Card applications, under the current regulations, sponsoring family members are generally required to submit a binding “Affidavit of Support.” Under the longstanding interpretation of current regulations, the public charge provisions can generally be overcome by an Affidavit of Support demonstrating the sponsor’s specified level of financial wherewithal. Under the new regulations, a “totality of the circumstances” test would apply, with the focus shifting from the sponsor’s affidavit to the immigrant’s work history, skills, finances, English language ability, health, household size, and other factors. Required proof includes the foreign national’s US tax returns and credit report. The same proof is required from employment-based Green Card applicants. These applicants were previously generally able to overcome the public charge provisions based upon job offers and employment histories.

Status: On October 11, three Federal District Courts issued injunctions blocking the implementation of DHS’s revised public charge regulations. The claims center on Administrative Procedures Act (APA) violations, Due Process and Equal Protection arguments, as well as violations of the INA and multiple public benefits statutes. Two of the three injunctions are nationwide. Additional cases are pending in Federal District Courts in Maryland and Illinois. These include:

DOS Redefinition of Public Charge in January 2019

Notwithstanding the injunctions discussed above, health insurance is still relevant to evaluation of public charge inadmissibility, particularly in the context of immigrant (permanent) visa applications at the US consulates abroad. DOS instituted some changes to the interpretation and adjudication of the public charge inadmissibility ground in early 2019. These changes appear in the Foreign Affairs Manual (FAM) guidance for consular officers. These revisions alter the factors to be considered by the consulate regarding whether a visa applicant is inadmissible under the public charge provisions. For some, insurance coverage (or access to such coverage) will come into play during the consulate’s public charge evaluation.

The majority of immigrant visa applications at US consulates are based upon sponsorship petitions filed by qualifying US citizen or US permanent resident family members. As explained above, in such cases, the sponsoring US citizen or US permanent resident must provide a binding Affidavit of Support meeting specified income and/or asset levels. Over the last two decades, the FAM instructed consular officers that a proper Affidavit of Support would normally be sufficient for the visa applicant to overcome the public charge inadmissibility grounds. That is, if the sponsoring family member could demonstrate sufficient income and/or assets, the inquiry would end.

Following the January 2019 changes to the FAM, the consular officers must “in every case” consider factors relating to the prospective immigrant, including: age, health, family status, assets, resources, financial status, education and skills.” The Affidavit of Support is given weight as a positive factor, but it is not dispositive. Health conditions which may impact employment, increase the chances of medical expenses or otherwise affect the visa applicant’s ability to be self-sufficient make it more difficult to overcome the public charge provisions. In such cases, the FAM suggests that applicants submit proof of health insurance or the ability to pay anticipated medical bills. Thus, medical coverage and the ability to cover health care costs is a factor which can be considered on a case-by-case basis during immigrant visa adjudication.

What's Next?

The battle over the interpretation of the public charge grounds of inadmissibility is far from over. The lawsuits on both the Presidential Proclamation and the DHS regulations will wind their way through the courts. Like the travel ban, the Proclamation, even if successfully challenged, may be modified and reissued in an effort to create a version which will withstand scrutiny by the courts. As set forth above, insurance coverage can be considered by the US consulates as a factor in their public charge inadmissibility determination. Within the US, while the regulations remain unchanged, with the exercise of discretion comes the opportunity to consider a variety of factors – including health insurance. Thus, while the litigation proceeds and the legal debate continues, prospective immigrants and their sponsors must, as a practical matter, be prepared for scrutiny on self-sufficiency, including the ability to cover medical expenses.