KEEPING TABS ON A NON-CITIZEN'S ELIGIBILITY FOR HEALTH COVERAGE UNDER THE AFFORDABLE CARE ACT

By Cyrus D. Mehta

President Obama’s healthcare law, the Affordable Care Act (ACA), is here to stay especially after the law withstood a challenge in King v. Burwell that allows the federal government to provide subsidies to poor and middle class people to buy health insurance on a nationwide basis. 

Even non-citizens who are lawfully present may access the health exchange to buy insurance under the ACA. Many non-citizens will also be subject to the individual mandate or “individual shared responsibility provision” if they do not maintain essential health coverage. It is thus important to keep track of a non-citizen’s eligibility as well as when such an individual may be penalized on his or her next tax return for not maintaining essential coverage, which has been explained in Who is Lawfully Present Under the Affordable Care Act?

Becoming Lawfully Present After Enrollment Period Has Closed

The next open enrollment period for 2016 starts November 1, 2015 and ends January 31, 2016. The last open enrollment closed on February 15, 2015. What if a non-citizen becomes eligible for ACA coverage between February 15, 2015 and November 1, 2015?

Take the example of a US citizen who has sponsored her parents, John Smith and Jane Smith, under the immediate relative category through the filing of an I-130 petition while they were outside the United States. They came to the United States on June 25, 2015 as permanent residents upon the approval of the I-130 and the issuance of immigrant visas at the consular post overseas. A permanent resident is a qualified alien who is eligible for coverage on a health exchange and is also subject to the mandate. Although the open enrollment closed on February 15, 2015, John and Jane are eligible under the 60 day special enrollment period because they just became permanent residents after the prior enrollment period closed on February 15, 2015. Assuming that they do not have minimum essential coverage as yet, if John and Jane do not take advantage of the special enrollment period and get coverage in the first full month during which they are present for the entirety of the month, they will be subject to a penalty when they file their tax returns for 2015. Even if John and Jane choose to return to their original country for two years on a reentry permit to wrap up their business and sell their home, they must still enroll for health coverage or qualify for an exception, which includes qualifying under the foreign earned income exclusion pursuant to section 911(d)(1)(A) or 911(d)(1)(B) of the Internal Revenue Code. This is more fully explained in the blog entitled The Impact of Obamacare on Green Card Holders Who Reside Outside the United States.

Let’s discuss another example of a person who applies for permanent residence from within the United States. Maria Fernandez entered the United States on a B-2 visitor’s visa on January 1, 2009 and has remained ever since. She overstayed her authorized stay as a visitor after July 1, 2009. As a result of overstaying her B-2 visa status, she is not considered lawfully present under the ACA. On April 1, 2015, Maria married a US citizen, who filed an I-130 petition on her behalf and she concurrently filed an I-485 application for adjustment of status. Under the definition of “lawfully present” in 45 CFR 152.2(4)(vii), she is not yet lawfully present as the underlying I-130 visa petition has not been approved. For immigration purposes, Maria will be considered lawfully present as an adjustment application, but some of the definitions of “lawfully present” under the ACA are not in harmony under immigration law. However, if Maria obtains employment authorization as an adjustment applicant, she will be considered lawfully present pursuant to 45 CFR 152.2(4)(iii). Suppose Maria obtains employment authorization on July 1, 2015, although the next open enrollment starts on November 1, 2015 and assuming she does not have minimum essential coverage, Maria will be eligible for the special 60 day enrollment period under 45 CFR 155.420(d)(3).

If on the other hand, Maria does not apply for employment authorization as an adjustment applicant pursuant to 8 CFR 274a.12(c)(9), she will not be considered lawfully present until after her I-130 petition is approved or when she becomes a lawful permanent resident, whichever is earlier.

Special enrollment is available when “[t]he qualified individual, or his or her dependent, which was not previously a citizen, national, or lawfully present individual gains such status.”  45 CFR 155.420(d)(3). It is unclear whether special enrollment would be available to someone who was previously lawfully present, then fell out of status, and now regains another status.  However, it would be bizarre if this rule precluded someone who had ever been lawfully present in their life previously. If the rule was applied so rigidly, someone like Maria in the above example would not qualify for special enrollment and would have to wait for the next open enrollment on November 1, 2015. Even visitors in B-2 status may be considered lawfully present under the ACA, but they may not be required to seek health coverage if they have not yet become tax residents.  Special enrollment ought to cover anyone who goes from not being lawfully present to being lawfully present.

Lawfully Present Non-Citizens with Low Incomes

Lawful Permanent residents are excluded from Medicaid unless they have had this status for at least 5 years under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The Children’s Health Insurance Program of 1997 (CHIP), however,  allows pregnant women and children lawfully residing in the United States to access both Medicaid and CHIP even if they have not resided in the United States for five years. Not all states, though, have lifted the 5 year waiting period for CHIP coverage.  Although newly minted LPRs with low incomes may not be able to access Medicaid within the first five years unless they qualify for CHIP, the ACA provides subsidies to eligible non-citizens, which are now protected even if offered through the federal health exchange after King v. Burwell. Lawfully present non-citizens with incomes up to 250% of the Federal Poverty Level (FPL) are eligible for cost sharing subsidies, and those up to 400% of the FPL are eligible for tax credits to offset the costs of purchasing private plans. Due to the 5 year Medicaid ban, lawfully present immigrants that have incomes under 100% of the FPL can also receive subsidies and tax credits that their US citizen counterparts are precluded from obtaining in states that have refused to expand Medicaid.  Although the Supreme Court in National Federation of Independent Business v. Sibelius upheld the constitutionality of the ACA, it also gave states the choice of whether or not to expand Medicaid. At the time of writing, 30 states including the District of Columbia have opted for expanded Medicaid.

Low income non-citizens who avail of either Medicaid or other subsidies will not be rendered a public charge for immigration purposes.  According to USCIS policy, “Non-cash or special purpose cash benefits that are generally supplemental in nature and do not make the person primarily dependent on the government for subsistence do not impact a public charge determination.” On the other hand institutionalization for long term care through Medicaid or other subsidies would be considered as a factor in making a public charge determination. 

Conclusion

In King v. Burwell, Chief Justice Roberts who wrote the majority opinion stated that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Since the ACA is here to stay and will most likely be firmly entrenched in the nation’s DNA like Social Security and Medicare, many qualified and lawfully present non-citizens will also be able to access benefits the ACA and may also become subject to the mandate. At this point, undocumented immigrants or recipients of Deferred Action for Childhood Arrivals (DACA) cannot access the health exchanges or avail of the subsidies. Some states may have their own rules, so for example in New York, DACA recipients and other ‘permanent residents under color of law” (PRUCOL) can still avail of Medicaid since the New York Court of Appeals in Aliessa ex rel. Fayad v. Novello held that PRWORA violated New York’s Equal Protection Clause.  The ACA is becoming more and more linked to immigration issues. While an immigration practitioner need not be an expert in other disciplines, he or she must be aware of eligible statuses for coverage under the ACA, the deadlines for enrollment and when the 60 day special enrollment may become available and the potential for someone to be subject to additional payment to the IRS for failing to obtain coverage, unless the client can qualify for an exemption.

EXTENSION OF STEM OPTIONAL PRACTICAL TRAINING FOR FOREIGN STUDENTS UNDER PRESIDENT OBAMA’S EXECUTIVE ACTIONS?

By Cyrus D. Mehta

Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s  executive actions of November 20, 2014.  While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT  extension regulation relating to its promise to retain skilled foreign talent. It is also refreshing that the Obama Administration is endeavoring to implement a key executive action, especially after a  noted immigration blogger justifiably began to wonder whether the Obama Administration was fulfilling its promise or not.  

According to Senator Grassley’s letter dated June 8, 2015, the DHS is moving forward with new regulations on OPT

    - allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and

      - authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

Presently, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. The Senator’s letter also seems to suggest that the agency is considering that employers will certify that they have not displaced US workers.  The STEM OPT extension is presently subject to a legal challenge by the  Washington Alliance of Technology Workers (Washtech). See Washington Alliance of Technology Workers v. DHS, Civil Action No. 1:14-cv-529.   Plaintiffs have alleged that the OPT STEM extension period is a deliberate circumvention of the H-1B visa cap in violation of Congressional intent, and have also been granted competitor standing, which recognizes that a party suffers injury when a government agency lifts regulatory restrictions on competitors or allows increased competition.  

Notwithstanding Senator Grassley’s protest and the lawsuit, this is good news for foreign students, especially those who were not selected in the H-1B visa lottery for FY2016.  While the current lawsuit could potentially thwart the  efforts of the administration to extend STEM OPT especially in the face of mounting law suits,  we can also take comfort in an earlier failed legal challenge against STEM OPT.

Soon after the DHS extended OPT from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand X involved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

So, why is Washtech again challenging the STEM OPT extension after another challenger had previously failed? This is because the DC Circuit is a favorable court to get standing, which it has already been granted. Even if plaintiffs ultimately prevail on their competitor standing theory, which requires them to show that they are direct and current competitors to F-1 students, plaintiffs still have an uphill task. The plaintiffs rely on International Bricklayers Union v. Meese (another reason why they have commenced legal action in the DC Circuit),  which struck down an INS Operating Instruction that allowed foreign laborers to come to the US on B-1 visas to install equipment or machinery after it had been purchased from an overseas seller. The court in International Bricklayers agreed with the plaintiffs that the laborers were not properly in the United States on a B-1 business visa, which under INA 101(a)(15)(B) precluded one from “performing skilled or unskilled labor.” In fact, Congress had enacted the H-2B visa for this sort of labor pursuant to INA 101(a)(15)(H)(ii)(b).

On the other hand, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is more ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i) under Chevron and Brand X even if it expanded STEM OPT beyond the maximum available  period of 29 months. From a policy perspective, the Administration should be given room to expand STEM OPT in order to retain skilled talent in the United States. Global competition for STEM students has increased dramatically, and many countries have reformed their immigration systems to attract such students. American innovation will fall behind global competitors  if we cannot find ways to attract foreign talent especially after they have been educated at American universities.

Senator Grassley’s misgivings about extending STEM OPT  are misplaced, and it is fervently hoped that the Administration will not pay heed to his letter and cynically scrap the program after putting up a show that it had tried it’s best. If extended STEM OPT is implemented, it will provide the impetus for the implementation of other key executive actions such as allowing entrepreneurs to be paroled into the United States and permitting beneficiaries of approved I-140 petitions to work and enjoy job mobility even if their priority dates have not become current. Each and every action will surely get challenged, but the Administration should fight on and prevail, like it did when the motion to preliminarily enjoin the granting of work authorization to H-4 dependent spouses failed.  

PUTTING DISNEY AND H-1B VISAS IN PERSPECTIVE

By Cyrus D. Mehta

Most who read Julia Preston’s New York Times article on Disney laying off its qualified programmers to be replaced with Indian  programmers on H-1B visas at HCL America are understandably outraged. The fact that Disney axed its employees – an iconic American  company that has promoted happiness, gentleness  and well being– has let down people even more. There have been more than 3,000 mostly angry comments to the article.

If we put aside the Indian H-1B worker for a minute, no one will doubt that it is business reality for companies to contract out many of their functions, such as IT, accounting or human resources. This practice is not limited to employers using foreign labor, and it is a widespread practice for companies to cut costs by reducing overhead such as payroll and benefits. Would there be similar outrage if an American law firm contracted away its human resources functions and stopped hiring additional HR personnel? Or if an entrepreneur wanted to sell a newly designed stroller with interesting gizmos in the US market, but arranged to have the manufacturing done in China? While we all feel badly for the American workers who may have been laid off, this is an unavoidable part of the quantum advances that have been made in globalization and the information technology revolution, which does not just involve access to foreign skilled labor (even if outside the United States) but even automation and robotics. Tom Friedman once famously said this in his NYT column “Average is Over”:  

In the past, workers with average skills, doing an average job, could earn an average lifestyle. But, today, average is officially over. Being average just won’t earn you what it used to. It can’t when so many more employers have so much more access to so much more above average cheap foreign labor, cheap robotics, cheap software, cheap automation and cheap genius. Therefore, everyone needs to find their extra — their unique value contribution that makes them stand out in whatever is their field of employment. Average is over.

This is not to suggest that the laid off American workers in the Disney episode were average, but it is fervently hoped that the benefits that accrue in contracting away functions in this new era of globalization will allow companies to engage in innovations that will  ultimately benefit consumers, which in turn will create more, albeit different, jobs in the United States. Even Disney said that after its reorganization that allowed it to focus on more innovations, it had a net gain of 70 jobs and has created 30,000 new jobs in the past decade.

While the media highlights the cases of Disney and SoCal where US workers are laid off and replaced by H-1B workers of an IT consulting company, most employers hire H-1B workers to supplement their workforce and not to replace their workforce. The H-1B visa cap is too small with only a total of 85,000 annual slots, and I personally have represented employers and  talented H-1B workers who can no longer be employed because they were not selected under the H-1B visa lottery. It is unfortunate that US employers lost talented foreign workers, many of whom have been educated at US universities. Lower costs, as is commonly believed,  is not the driving factor in hiring H-1B workers . The employer has to pay the higher of the prevailing wage or the actual wage it pays similarly situated workers, and so it is generally difficult for an H-1B worker to replace a US worker because they are cheaper. The employer has to also pay filing fees ranging from upwards of $2,325 to $5550, plus lawyers’ fees, besides the mandated prevailing wage.

Contrary to how the H-1B visa program is portrayed in the media, an employer does not have to first find a US worker before hiring an H-1B worker, or be concerned about displacing American workers at client locations such as Disney,  unless the employer is dependent on H-1B workers or has been found to have been a willful violator. See INA 212(n)(1)(E), (F) and (G) & INA 212(n)(3)(A). But even a dependent H-1B employer or willful violator need not recruit for a US worker first, or be concerned about displacement,  if it pays the H-1B worker over $60,000 or the worker has a Master’s degree. See INA 212(n)(3)(B).  The employer has to pay the higher of the prevailing or the actual wage among the workers that it employs and not which Disney employs. The replacement H-1B worker relating to the skill needed for Disney’s new technology platform need not have 10 years of experience, but probably less experience, and can be paid accordingly but still at the prevailing wage.

Critics of the H-1B program seize upon INA 212(n)(1)(A)(ii), which  states that an employer “will provide working conditions for such [an H-1B] nonimmigrant that will not adversely affect the working conditions of workers similarly employed.”  They argue that it is this provision that renders what happened at Disney to be in violation of the spirit of the law, if not the letter of the law.  But this is hardly the case. INA 212(n)(1)(A)(ii) represents the second of four attestations that a non-dependent employer makes on a Labor Condition Application. 20 CFR 655.732(b) defines “working conditions” to “include matters such as hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.” The first attestation is that the employer agrees to pay the higher of the prevailing or actual wage. The third attestation that the employer makes is that there is no strike or lock-out in the occupational classification at the place of employment. The fourth and final attestation requires the employer to provide notice to the bargaining representative, and if none exists, then it must be posted at the place of employment for 10 days.

INA 212(n)(1)(A)(ii) does not mandate that the employer has to first recruit US workers. Elsewhere in INA 212(n) it is clear that only a dependent employer or one found to be a willful violator, who has no exempt H-1B workers, is required to recruit US workers and be concerned about displacing American workers at client sites. See INA 212(n)(1)(E), (F) and (G). While it intuitively makes sense for the employer to be required to test the US labor market before hiring all H-1B workers and be concerned about displacing a US worker, the H-1B visa is a temporary visa, and there is also the countervailing policy interest for employers  to be able to expeditiously hire foreign national workers to urgently execute projects. If they wish to sponsor them for permanent residence, there is an elaborate procedure for the employer to first certify that there was no willing or qualified worker for the position. H-1B workers have to also be paid the higher of the prevailing or actual wage, and at times the prevailing wage mandated by the Department of Labor seems to be higher than what it is in reality in many occupations. 

 The use of IT consulting companies is widespread in America (and even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (AVWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors.  IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. However, it is this very business model has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the US promotes vehemently to other countries (including the protection of intellectual property rights of its pharmaceutical companies that keep life saving drugs high), but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the United States through their skilled personnel. US companies and IT consulting companies should engage in more public relations efforts to highlight the overall benefits of their collaborations, which in the case of the Disney episode was admittedly not enough.

 By continuing to limit and stifle the H-1B program, US employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at IT consulting company, as they too wish to abide by the law and to pursue their dreams in America.  The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly,  H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it with stifling laws and regulations, labor attestations and quotas.