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.
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