MAY 10, 2013  |  Download

FREQUENTLY ASKED QUESTIONS

Do Aspiring Citizens Have Access to Affordable Health Care & Benefits Under S. 744?

This FAQ addresses commonly asked questions about who would be eligible for affordable health care and federal public benefits if recently introduced immigration reform legislation becomes law. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744), which was introduced in the U.S. Senate in mid-April, would create new immigration categories or statuses, including “registered provisional immigrant” (RPI), a new farm worker (“blue card”) status, and a new “nonimmigrant” V-visa status for people whose family members have filed immigrant visa petitions on their behalf. What affordable health care coverage or federal public benefits would people granted one of these new statuses be eligible for? Or how long would they have to wait to be eligible for such care or benefits?[1]

Q 1.  Would people who get RPI status under S. 744 be immediately eligible for Medicaid, SNAP (food stamps), or other federal public benefits?

No. As introduced, the Senate bill, S. 744, excludes any person with RPI status, during the period when they have provisional status, from eligibility for “federal means-tested public benefit” programs. These programs include nonemergency Medicaid, the Children’s Health Insurance Program (CHIP), the Supplemental Nutrition Assistance Program (SNAP, or food stamps), Temporary Assistance for Needy Families (TANF, or cash assistance), and Supplemental Security Income (SSI). People granted RPI status would have to wait, at a minimum, 13 to 15 years to become eligible for federal means-tested public benefit programs.

Under the bill as it is currently written, most RPIs will have to wait 10 years before they will be eligible to adjust to lawful permanent resident (LPR or “green card”) status. After 3 years in LPR status, they will be eligible to apply for U.S. citizenship. During the time they are in RPI status (for most, this will be 10 years) they will be ineligible for federal public benefits. After an RPI obtains LPR status, he or she won’t be eligible for any federal means-tested benefit program for an additional 5 years if he or she remains an LPR, according to current eligibility rules regarding federal benefits for noncitizens.[2] If a person who originally was granted RPI status naturalizes in 13 years (after 10 years as an RPI + 3 years as an LPR), he or she would become eligible for federal public benefits, if he or she were otherwise eligible,[3] without any additional waiting period, just like any other U.S. citizen.

As a result, low-income people who are granted RPI status and meet all the other eligibility requirements for these programs will have to wait, at a minimum, 13 to 15 years before being able to enroll in any of these critical anti-poverty programs — programs that their tax dollars will support during that period.[4]

Q 2.  Will DREAMers be immediately eligible for federal public benefits?

No. As introduced, the Senate bill excludes any person with RPI status, during the period when they have provisional status, from eligibility for “federal means-tested public benefit” programs. Under S. 744’s provisions covering “DREAMers” (unauthorized immigrants who were brought to the U.S. as children), people who qualify under the DREAM road to citizenship will first have to apply for RPI status and will be eligible to adjust to LPR (or “green card”) status after 5 years of being in RPI status. Therefore, during their 5 years in RPI status, DREAMers will be ineligible for federal means-tested benefit programs.

Under the bill as it is currently written, once they are granted LPR status, DREAMers will be eligible to apply immediately for citizenship. Because DREAMers who adjust to LPR status will be subject to the 5-year bar (see footnote 2), they will not be eligible for any federal public benefit program for an additional 5 years, unless they are granted citizenship before the end of their 5-year waiting period. As a result, if a DREAMer is able to naturalize immediately after adjusting to LPR status, he or she would have to wait a minimum of 5 years to become eligible for federal means-tested public benefit programs. However, if a DREAMer remains in LPR status (after 5 years in RPI status), he or she is subject to the 5-year bar and will not be eligible for federal public benefit programs for at least 10 years after being granted RPI status.

Under the current eligibility rules, when a child adjusts to LPR status, if he or she is otherwise eligible, the child may enroll in SNAP without any waiting period. In addition, some states may choose to use state funds to provide certain benefits to RPIs (while they are in provisional status), without any waiting periods.

Q 3.  Will RPIs be able to enroll in affordable health care under the Affordable Care Act (ACA or “Obamacare”)?

No. The Senate bill excludes RPIs, including DREAMers, from benefiting from the parts of the ACA that are most important for low- and middle-income individuals and families: the federal subsidies, in the form of premium tax credits and cost-sharing reductions, that are required to help make private insurance more affordable. The subsidies are a critical part of being able to afford health insurance in the new “marketplaces” that the ACA establishes for currently uninsured people. Without access to the subsidies, many low-income families who do not have access to employer-sponsored coverage will likely remain uninsured after 2014. The Senate bill does allow RPIs to buy full-cost health insurance in the new ACA-created health insurance marketplaces; but because the bill denies RPIs access to the subsidies provided by the ACA, health insurance will remain unaffordable to RPIs and it is likely that most will remain uninsured.

Once an RPI adjusts to LPR status after 10 years, he or she should be eligible for the ACA’s tax credits without a waiting period. Thus, RPIs will have a minimum 10-year wait before they will be able to buy affordable health insurance under the ACA.

Q 4.  Will an RPI be required, under the ACA, to have health insurance after Jan. 1, 2014?

The answer to this question is still to be determined. Based on S. 744’s language when it was first introduced, RPIs would be required, under the ACA’s “individual mandate,” to have health insurance. In other words, after Jan. 1, 2014, they would be required to buy health insurance even though they don’t have access to the ACA subsidies, and they’d also be subject to a tax penalty, unless one of the ACA’s existing exemptions from the mandate applied to them.

However, it appears that the bill will be amended to explicitly exempt RPIs from the ACA’s individual mandate. If this happens, RPIs will not face any tax penalty for not being able to afford health insurance and may remain uninsured without being penalized under the ACA. Regardless of this exemption from the individual mandate, RPIs will remain excluded from access to the ACA’s tax subsidies during their provisional status and are likely to remain uninsured for 10 years or more.

Q 5.  Will farm workers with “blue-card” status or people who obtain a V nonimmigrant visa (certain people with an approved family-based petition who are awaiting LPR status) be able to apply for Medicaid, SNAP (food stamps), and other federal public benefits?

Under S. 744, people with blue cards or V nonimmigrant visas will face the same exclusions from federal means-tested public benefit programs (nonemergency Medicaid, CHIP, SNAP, TANF, and SSI) as RPIs. People with blue cards will have to remain in this provisional status for 5 years before they are eligible to apply for LPR status. Upon obtaining LPR status, they will be ineligible for federal means tested public benefits for another 5 years due to the 5-year bar (see footnote 2). As a result, people with blue cards will not be able to enroll in federal public benefits for at least 10 years after they get lawful status.

The amount of time people with V visas will have to wait before they can enroll in federal public benefit programs will vary. The amount of time a particular person remains in V-visa status before he or she actually adjusts to LPR status will depend on when U.S. Citizenship and Immigration Services (USCIS) processes his or her adjustment application. After people with V visas adjust to LPR status, like other individuals granted LPR status they will be subject to the 5-year bar. Therefore, V visa–holders will have to wait a minimum of 5 years after they get LPR status before they are able to enroll in federal public benefit programs.

Q 6.  Will people with blue cards or V visas be eligible for affordable health care under the ACA?

No. The Senate bill excludes people with blue cards or V visas from eligibility for the subsidies (premium tax credits and cost-sharing reductions) that will make private health insurance more affordable in the ACA’s health insurance marketplaces. If, as expected, S. 744 is amended, they will not be required to have health insurance under the ACA’s individual mandate (see question 4, above). After they obtain LPR status, people who previously had blue cards or V visas should be eligible for the ACA’s subsidies without a waiting period.

Q 7.  Will other workers, such as high-skilled workers with H-1B visas or workers in the new W-visa categories, be eligible for federal public benefits or affordable health care under the ACA?

No. Current immigrant eligibility rules apply to other categories of immigrants and workers affected by the Senate bill. People granted H or W visas are not considered “qualified” immigrants under the 1996 welfare law and are therefore ineligible for federal means-tested public benefits while in those statuses. If a person granted an H or W visa is able to adjust to LPR status, he or she will be subject to the 5-year bar (see footnote 2) like other people granted LPR status.[5] As a result, current and future noncitizen workers who are considered lawfully present in the U.S. will remain ineligible for federal means-tested public benefit programs — nonemergency Medicaid, CHIP, SNAP, TANF, and SSI — while in the status by virtue of which they are lawfully present. If granted LPR status, they remain ineligible for federal public benefits for a minimum of 5 years.

Workers who obtain lawful immigration status by being sponsored by an employer may be able to get employer-sponsored health insurance, if their employers offer it and it is affordable. If they can’t get insurance that way, because they are lawfully present they will be eligible for the programs created by the ACA, including the subsidies that make health insurance more affordable.

Q 8.  Will RPIs or people with V visas or blue cards be eligible for any health or public benefit programs if S. 744 becomes law?

RPIs and people with blue cards or V visas will be issued a Social Security number and will be eligible to apply for employment authorization. If they are employed and paying payroll taxes, like other workers they may be eligible for certain work-related benefits and services, such as unemployment benefits, workers compensation, or Workforce Investment Act (WIA) job-training services. They also may be eligible for Social Security benefits once they have sufficient work history. People in these statuses should also be able to get a driver’s license in most states, and they should be eligible for in-state tuition in at least some states or at some colleges.

An RPI or a person with a blue card or V visa should remain eligible for programs that are available to anyone, regardless of his or her immigration status, if the person is otherwise eligible for the programs. Such programs include school breakfast/lunch, WIC (supplemental nutrition for women, infants and children), emergency Medicaid, community clinics, public health services, and homeless and domestic violence shelters.

Q 9.  Will an employer who hires an RPI or a person with a blue card or V visa be required to provide health insurance and other benefits to this employee?

Under existing law, an employer who offers health insurance or other benefits to its employees may not discriminate based on immigration status and must provide the same benefits to similarly situated employees. Nothing in S.744 changes the obligations required by existing law of employers to their employees.

Therefore, an employer who hires a person granted one of the new immigration statuses created under S. 744 must provide health coverage and other benefits to this employee if the employer is required to do so under the ACA or other obligations for similarly situated employees (e.g., a collective bargaining agreement).

Unfortunately, the exclusion of RPIs and people with blue cards and V visas under S. 744 creates an unintended loophole under the ACA for large employers who hire these people. Specifically, after 2014, any employer with 50 or more full-time employees will be considered a “large employer” under the ACA and will be required either to provide affordable, comprehensive health insurance to their employees or to pay a fee. However, the employer is required to pay this fee only when an employee purchases health insurance in the health insurance marketplace and obtains a premium tax credit under the ACA. Thus, because under S. 744 RPIs and people with blue cards or V visas will be ineligible for the ACA’s premium tax credits, under existing law a large employer could potentially avoid paying its “shared responsibility” fee under the ACA even if it fails to provide these eligible employees affordable employer-sponsored coverage as required by law. This loophole undermines the goals of the ACA and unintentionally creates an incentive to hire people in these statuses over others, citizens and noncitizens, who are eligible for the ACA’s subsidies.

THIS FAQ WILL BE UPDATED in the days and weeks ahead to reflect our most current understanding of the Senate immigration reform bill.

FOR MORE INFORMATION, CONTACT

Jenny Rejeske, DC Health Policy Analyst, rejeske@nilc.org

Sonal Ambegaokar, Health Policy Attorney, ambegaokar@nilc.org