Ninth Circuit Upholds Injunction Against Health Insurance Requirement for Immigrant Visa Applicants

The issue

The U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against a presidential proclamation that seeks to require immigrant visa applicants to demonstrate that that they would have unsubsidized health insurance within 30 days after entry to the United States or sufficient funds to cover reasonably foreseeable medical expenses. The case is Doe v. Trump.

The proclamation, which was slated to take effect on November 3, 2019, would have applied to most foreign nationals applying for immigrant visas on or after the effective date — including family-based, employment-based and Diversity Lottery immigrant visa applicants. The proclamation declared that, without such a health insurance requirement, immigrants would pose an undue financial burden on the U.S. healthcare system. A lawsuit was filed to challenge the requirement and in November 2019, the U.S. District Court for the District of Oregon temporarily blocked the proclamation.

In upholding the district court injunction, the Ninth Circuit ruled that the president’s authority to restrict the entry of foreign nationals to the United States on purely long-term economic grounds is not limitless. The court also ruled that the proclamation likely conflicts with other federal laws, including the Affordable Care Act, the Violence Against Women Act, and the public charge provision of the Immigration and Nationality Act.

The Trump Administration is expected to appeal the Ninth Circuit ruling to the Supreme Court. Meanwhile, the federal district court lawsuit against the proclamation continues.

What this means for employers and foreign nationals

The preliminary injunction against the health insurance proclamation will remain in place for now, though its immediate impact is limited because immigrant visa issuance at U.S. consulates is largely suspended due to the COVID-19 emergency.

However, one of the key issues addressed in the ruling – the President’s authority to restrict the entry of foreign nationals for long-term economic reasons – is likely to be raised in lawsuits related to other presidential actions. For example, it could arise in a challenge to President Trump’s latest proclamation temporarily barring the entry of immigrants as a means to protect the U.S. labor market from the impact of the economic consequences of the COVID-19 pandemic. In that proclamation, the President also ordered the Departments of Homeland Security and Labor to study the economic impact of U.S. nonimmigrant visas and recommend measures to "stimulate the U.S. economy and ensure the prioritization, hiring and employment of United States workers."

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.