Health Care Requirement for Potential Immigrants

Is There a New Rule About Immigrant Health Insurance?

On October 4, 2019, President Trump issued a proclamation requiring people applying for an immigrant visa to demonstrate that they will have health care within 30 days of their arrival in the United States or that they have the funds necessary to pay medical expenses.

A California district court temporarily halted this new rule, but the 9th circuit court of appeals has indicated, on December 31,2020, that they will remove this temporary restriction, and will allow the new rule to be implemented. There may be additional legal battles surrounding this new requirement, including appeals, but for now, the new rule will be allowed to take effect once the 9th circuit issues their formal mandate (most likely, this will take place about 45 days after December 31).

Am I Subject to this Rule?

You are subject to this rule if you are applying for an immigrant visa to enter the United States, unless you belong to a group that falls under an exception.

You are not subject to this rule if:

(1) You already have a valid immigrant visa;

(2) You are a translator from Afghanistan or Iraq or otherwise aided the U.S. in Afghanistan or Iraq, or your spouse or parent is a translator from Afghanistan or Iraq or otherwise aided the U.S. in Afghanistan or Iraq, and you are entering the United States with a Special Immigrant Visa;

(3) You are the child or stepchild of a United States Citizen;

(4) You have been adopted by or are entering the United States to be adopted by a United States Citizen (in this case, your visa category would be IR-2, IR-3, IR-4, IH-3, or IH-4);

(5) You are the parent of a U.S. Citizen and are entering the U.S. with an IR-5 visa, and you or your sponsor can convince the consular officer that your healthcare will not be a “substantial burden” on the U.S. healthcare system;

(6) You are a permanent resident or conditional resident who stayed outside the United States for longer than one year through no fault of your own, and are now returning to the U.S. with a returning resident visa (SB-1 visa);

(7) You are under the age of 18 and you are NOT accompanying a parent who is also immigrating and who is subject to this rule;

The Secretary of State or Attorney General may also make some special exceptions for people whose admission to the United States would be important for U.S. law enforcement or whose admission would be in the national interest.

If you are seeking to enter the United States with a non-immigrant visa, this rule does not apply to you. (For example, fiancé/fiancée visas are non-immigrant visas and therefore not subject to this rule).

If you are seeking asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, this rule will not affect your eligibility for that protection.

If you are not sure if you are subject to this rule, make an appointment with Attorney Jon Wu for individual advice.

What Type of Health Care Will Count?

The following types of health care are all considered sufficient:

(1) an employer-sponsored plan (this includes retiree plans, association health plans, and health coverage provided by your employer due to COBRA, which may in some cases continue your health coverage after you have left employment);

(2) an unsubsidized health plan offered in the individual market within a state;

(3) a short-term health policy or a visitor health insurance plan that is effective for at least 364 days;

(4) a short-term health policy or a visitor health insurance plan that is effective up until the beginning of planned, extended travel outside the U.S.;

(5) a catastrophic plan;

(6) a family member’s plan;

(7) a medical plan provided to military service members and their families under chapter 55 of title 10, the United States Code, including TRICARE coverage;

(8) a medical plan under the Medicare program;

(9) any other health plan that provides adequate coverage, as determined by representatives of the Secretary of Health and Human Services.

If you are over the age of 18, coverage under the Medicaid program does not count as approved health insurance.

If you are not sure if your health coverage is sufficient, make an appointment with Attorney Jon Wu for individual advice.

I Don’t Have Health Care Yet, But I Will Once I Arrive in the U.S. Is That Okay?

Yes. You only need to demonstrate that you will have sufficient health coverage within 30 days of your arrival in the United States.

I Don’t Have Health Care, But I’m Confident That I Can Cover My Costs. Is That Enough?

If you do not have and will not get health coverage, you will need to demonstrate, at your visa interview, with documentation, that you will be able to cover all “reasonably foreseeable” medical costs, including routine medical care.

Costs relating to a pre-existing condition are considered “reasonably foreseeable” medical costs, and you must demonstrate your ability to pay for any necessary treatment.

If you are not sure if you have sufficient evidence to demonstrate that you can pay your costs, make an appointment with Attorney Jon Wu for individual advice.

I Already Received My Green Card, But I Don’t Have Health Care. Will This Rule Affect Me?

If you are already a permanent resident, this rule does not affect your status. It only applies to people who are now applying for an immigrant visa.

I Heard that Using Medicaid Could Be Bad for my Immigration Case. Is that True?

One factor that immigration officers consider when reviewing applications for admission to the United States or applications to adjust status to become a permanent resident is the “public charge” factor. If the officers conclude that the applicant is likely to become reliant on public benefits, they may deny their application.

This determination is holistic, so the use of public benefits, including Medicaid, is not necessarily always disqualifying. However, past use of public benefits is more likely to lead to the officer concluding that the applicant is likely to use public benefits in the future.

If you have a nonimmigrant visa and apply to extend your stay or to change your status to a different nonimmigrant classification, you will need to demonstrate that you have not received public benefits for more than 12 months total within any 36-month period since first receiving your non-immigrant status.

You are not subject to the public charge rule and your use of public benefits will not negatively impact you if you are:

(1) a U.S citizen, even if you are related to a noncitizen who is subject to the public charge rule;

(2) a refugee;

(3) an asylee;

(4) an immigrant from Afghanistan or Iraq with a special immigrant visa (for example, if you or an immediate relative served as a translator for the U.S. armed services and subsequently received a visa);

(5) the recipient of a nonimmigrant visa because you have been the victim of human trafficking or certain crimes;

(6) applying under the Violence Against Women Act;

(7) a Special immigrant juvenile;

(8) the recipient of a waiver of public charge inadmissibility;

(9) a member of the U.S. armed forces, or the spouse or child of a member of the U.S. armed forces;

(10) the child or adopted child of a U.S. citizen, including U.S. citizens not living in the United States.

Some types of Medicaid use are not considered when making public charge determinations. The following uses of Medicaid will not be considered:

(1) to treat “emergency medical conditions”;

(2) to receive services or benefits provided by the Individuals with Disabilities Education Act;

(3) as school-based services or benefits for people who are at or below the oldest age eligible for secondary education under state or local law;

(4) by immigrants under the age of 21;

(5) by pregnant women, and women within the 60-day period beginning on the last day of the pregnancy.

If you are not sure if your use of public benefits will impact your case, or if you think you may need to apply for a waiver of the public charge inadmissibility ground, make an appointment with Attorney Jon Wu for individual advice.

I Need to Use Medicaid for My Child. Will that Affect my Immigration Case?

The rules provide several exceptions for children.

If your child is under the age of 21, their use of Medicaid will not affect their public charge determination.

If your child is at or below the oldest age eligible for secondary education, they may receive school-based services or benefits without it impacting their immigration case.

If your child is a U.S. citizen, they may receive public benefits, including Medicaid, without those benefits impacting a public charge determination for you, even if you are subject to the public charge rule.

If you or your child’s other parent (including adopted parent) is a U.S. citizen, they are exempt from the public charge rule.

If you are pregnant and receiving prenatal care, your use of Medicaid will not be considered when making a public charge determination.

If you are not sure if your child’s use of public benefits will impact your case, make an appointment with Attorney Jon Wu for individual advice.