Immigrants & the Healthcare System in New York

1. An Overview of Immigrants & theHealth Care System in New York July 2016

2. Objectives • Provide a broad overview of different types of immigrant status • Discuss the impact of immigration status on eligibility for other types of government benefits • Identify ways in which noncitizens can access medical care

3. Intro: Federal vs. State Benefits The federal government is in charge of all immigration benefits & Social Security. New York State administers Medicaid (and food stamps, public assistance, etc.). Federal laws limit how states can allocate federal funds but each state decides who can receive state funds. These systems may intersect, but they are fundamentally separate • Federal immigration agencies like the Dep’t of Homeland Security (DHS) cannot automatically access data from State agencies (e.g., who is receiving benefits) • An immigration application might qualify a patient for NYS Medicaid but notany federal benefits like SSI, work authorization, or a green card • “PRUCOL” is a NYS benefits category, not a federal immigration status

4. Intro: Recent Changes to Medicaid / Essential Plan Enrollment • Some noncitizens will be transitioned from Medicaid to the Essential Plan permanently • Some Medicaid-eligible noncitizens will be transitioned from Medicaid to the Essential Plan temporarily while DHS (Immigration) confirms their lawful presence in the U.S., and then transition back to Medicaid if they are not Essential Plan-eligible (coverage should be seamless)

5. Intro: Federal vs. State Benefits • 2013 Immigration & Customs Enforcement (ICE) Memo: “The [ACA] require[s] that individuals seeking coverage under a qualified health plan offered on a Health Insurance Marketplace or through [Medicaid, Children’s Health Insurance Program, or Basic Health Program] provide information regarding their immigration status and certain information about their household members to determine eligibility for such coverage. . . . Under the laws and implementing regulations, information provided by individuals for such coverage may not be used for purposes other than ensuring the efficient operation of the Marketplace or administering the program, or making or verifying certain eligibility determinations, including verifying the immigration status of such individuals . . . . . . Consistent with the . . . limitations on the use of information provided by individuals for such coverage . . . ICE does not use information about such individuals or members of their household that is obtained for purposes of determining eligibility for such coverage as the basis for pursuing a civil immigration enforcement action against such individuals or members of their household.”

6. Citizens Born in U.S. Born to USC parents living overseas Naturalization LPR for 3/5 years Speak English (or qualify for exception) No disqualifying arrests Refer patients for full screening before applying Aliens (a.k.a., noncitizens) Lawful, e.g., Lawful Permanent Residents (LPR = green card) Visa holders Refugees & asylees Semi-lawful, e.g., TPS, DACA, Deferred Action, etc. Unlawful, e.g., Crossed border without papers Overstayed visa Intro: Citizens & Aliens

7. Benefits of U.S. Citizenship • Greater access to benefits like SSI • Most LPRs do not qualify for SSI unless: • They have 40 quarters of work history • They were lawfully present in 1996 • More options for sponsoring family members • LPRs cannot sponsor married sons/daughters, parents, or siblings • Relatives of LPRs cannot apply for green cards in U.S.; they must travel to their home country and obtain their green card at U.S. embassy or consulate abroad • Can spend as much time out of U.S. as desired • LPRs who spend more than 6 months per year abroad might be considered to have abandoned their permanent residence in the U.S.

8. Becoming a U.S. Citizen • A lawful permanent resident (LPR) can apply for citizenship after being an LPR for 5 years (or 3 years if obtained green card through marriage to USC). • Applicants may be exempt from the history and civics portion of the interview process based on a physical or mental medical condition. • A Form N-648 must be completed by a treating physician or psychiatrist. A complicated form closely scrutinized by DHS. • Age, illiteracy, or limited education by themselves do no warrant an exemption. • “50/20” and “55/15” English Language Exemption • “65/20” Civics Test Rule

9. Unlawful / Undocumented / Unauthorized / “Illegal” Noncitizens • Visa Overstay: entered U.S. with nonimmigrant visa (tourist, student, guest worker, etc.), but did not leave by required date • Best case for obtaining green card in future • Entry by Fraud: entered with fraudulent documents • Much harder to obtain green card in future; need waiver • Entered Without Inspection (“EWI”): crossed border without any documents • Very hard to obtain green card; need waiver andmust travel to home country to obtain green card at embassy

10. Unlawful / Undocumented / Unauthorized / “Illegal” Noncitizens • Noncitizens in the U.S. unlawfully are subject to removal (i.e., deportation) • Vast majority will never deported unless they are recent entrants or are arrested for crimes (incl. DUIs, DV, etc.) • U.S. undocumented population = 11,000,000+ • In 2015, ICE removed ≈ 235,000 noncitizens • 70% were removed at/near border or point of entry • Only 30% were “interior removals”; of these, 91% were noncitizens with previous criminal conviction(s)

11. Unlawful / Undocumented / Unauthorized / “Illegal” Noncitizens & Benefits • Noncitizens with no lawful status qualify for Emergency Medicaid, ADAP, and CHIP (+ NYS Medicaid if pregnant) • Do not qualify for NYS or Federal Medicaid or Exchange/BHP • MYTH: Parents cannot get their “papers” in the future if their family receives public benefits. Not true. • Undocumented parents can apply for benefits for their USC children; doing so will not make the parents ineligible to apply for any lawful status in the future.

12. Lawful Status: Nonimmigrants • Bona fide nonimmigrants have no intent to stay in the U.S. permanently (e.g., students, tourists/visitors, guest workers, etc.) • Law presumes all entering noncitizens intend to stay permanently; burden is on nonimmigrant to show ties to home country and temporary nature of visit • Visas can be extended or changed to different type of visa (should be done 45 days before authorized stay expires) • Visitors’ visa is generally invalid once traveler overstays period of authorized stay • Student visas have different rules

13. Nonimmigrant Entry for Medical Treatment • No such thing as a “medical visa.” Individuals entering the US for medical treatment come on B1/B2 visas as “tourists” • May enter specifically for medical treatment if: • Disclose need for treatment to embassy or border officials and show ability to pay costs of treatment; or • Hospital agrees to pay for treatment (e.g., high profile case) • Humanitarian Parole • Limited form of relief; very few ever granted • Must demonstrate urgent circumstances • Must first be denied nonimmigrant visa • Must be outside U.S. • Must prove why needed and have affidavit of support

14. Health Coverage for Nonimmigrants • Individuals with certain valid nonimmigrant statuses (no overstays and no violation of terms of visa) can qualify for NYS Medicaid and/or Exchange/BHP if can also show NY residence • Holder of valid B1/B2 visitors visas, by definition, generally cannot show NY residence (i.e., intent to stay in NY indefinitely) • Under NY law, tourists/visitors may qualify for Emergency Medicaid • Under immigration law, visitors violate their tourist visas by accepting Emergency Medicaid (working or going to school) • Immigration or embassy officials may revoke a patient’s visa or refuse to renew it if violation(s) are discovered

15. Lawful Status: Immigrants a.k.a., Lawful Permanent Residents (LPRs)/Green Card Holders • Noncitizens who intend to stay in U.S. permanently. Includes: • Family-based green cards (majority) • Employment-based green cards • Generally cannot obtain if already in the U.S. unlawfully • Humanitarian-based (asylees, refugees, U visas, T visas, SIJ) • Diversity Visa lottery winners (from underrepresented countries) • Green cards are not issued solely for medical/health reasons or length of residence in the U.S. • An LPR can: • Live and work in the U.S. permanently • Travel outside the US (for less than 6 months) • Naturalize in 3 or 5 years

16. Relative Petitions & Family-Based Immigrants Visas (Green Cards) • Vast majority of green cards are family-based; U.S. citizens and LPRs can sponsor certain relatives in the U.S. or abroad • Application has two parts; both are significant for benefit eligibility determinations • Family Relative Petition (I-130) • Very simple; only need to prove valid family relationship • Under immigration law, pending or approved I-130 by itselfhas almost no benefit (no SSN, no work permit, no travel, etc.) • Under NY law, person with pending or approved I-130 is eligible for NYS Medicaid

17. Immigrants Visas (Green Cards) via Family-Based Petitions • Application for Permanent Residence (Green Card), I-485 • Very complex!!! • Many patients cannot proceed with this step because: • Different family members have different requirements; e.g.: • Spouse of U.S. citizen can apply for green card immediately without having to leave U.S. • Sibling of U.S. citizen must wait 12+ years to apply for green card and must return to home country to complete process at U.S. consulate/embassy • Patient is “inadmissible” (e.g., entered without a visa, committed fraud, has criminal convictions, etc.), and they do not qualify for a waiver

18. Immigrants Visas (Green Cards) via Family-Based Petitions • Application for Permanent Residence (Green Card), cont. • Many individuals cannot proceed due to “public charge” issues • Public charge = likely to become primarily dependent on the government for subsistence • Family sponsor (or joint sponsor) must meet income guidelines to show that they can support applicant • Individuals institutionalized long-term at government expense or dependent on SSI or cash assistance will likely be considered public charges and denied green cards • Most benefits (e.g., regular Medicaid, supplemental non-cash or earned benefits like SSD, workers comp, food stamps, rental or housing assistance, educational loans, etc.), do not make people public charges or affect eligibility for green cards

19. Immigrants Visas (Green Cards) via Family-Based Petitions • Due to complexity and expense of applying and qualifying for a green card, in many cases only filing the family petition (I-130) is appropriate: • Done solely for health insurance purposes to make patient PRUCOL under NY law and eligible for NYS Medicaid (will still not qualify for Exchange, BHP, or Federal Medicaid) • Under immigration law, patient is still undocumented • Family members only filing the petition do nothave to submit any proof of income and will not be responsible for supporting patient; this is only required when a patient applies for a green card

20. Other Paths to a Green Card: VAWA for Victims of Domestic Violence • VAWA Petition: If an undocumented immigrant is a victim of domestic violence by a USC or LPR spouse or parent, or recently divorced an abusive USC or LPR spouse, the undocumented immigrant may be able to file a VAWA petition. • Marriage must be bona fide (not done for purpose of obtaining green card) • Immigrant files on own with no knowledge, involvement or cooperation by the abuser • If VAWA petition granted, immigrant can apply for a green card • VAWA applicants qualify for NYS Medicaid andExchange/BHP • Public charge issue does not apply to VAWA applicants

21. Other Paths to a Green Card: U Visas for Crime Victims • Victims of certain serious crimes can apply for a U visa if: • They suffered serious mental or physical harm and • Assisted law enforcement (police or DA) in investigation or prosecution of crime (e.g., called police, didn’t refuse to testify in court); arrest or conviction is not necessary • Police or DA must sign form certifying that crime occurred and victim cooperated • Unlike VAWA, status of perpetrator is irrelevant • U visas capped at 10,000 per year; application process is verylong (3-4 years or longer)

22. Other Paths to a Green Card: U Visas for Crime Victims • Immigration benefits of U visa: • Work permit • U visa holders can sponsor children overseas to come to U.S. • Can apply for green card after 3 years • Like VAWA, public charge issue does not apply • Cannot travel overseas on a U visa • Health coverage for U visa: • NYS Medicaid while application is pending • NYS Medicaid and Exchange/BHP if visa is granted

23. Other Paths to a Green Card: Special Immigrant Juvenile Status (SIJ) • SIJ offers protection for undocumented immigrant youth who have been abused, abandoned, orphaned or neglected in the U.S. or abroad. This special status requires that a SIJ applicant be: • Declared dependent in a juvenile court (in NY this means Family Court must take jurisdiction over a petition, e.g., custody, guardianship, etc.); • Under 21 when application is filed; • Unmarried (though having children is OK); • Reunification with one or both of the child’s parents is no longer a viable option due to abuse, abandonment, death or neglect; and • It is not in the minor’s best interests to return to his/her country of origin • If granted SIJ, a minor may be able to apply for their own green card– superior to DACA!– but can never sponsor parent(s)

24. Other Paths to a Green Card: Asylee & Refugee Status • Status available to those who were persecuted in past or fear future persecution due to their race, religion, nationality, political opinion, or membership in a particular social group (e.g., sexual orientation) • Refugees are granted status outside the U.S. • Asylum-seekers apply for status inside the U.S. • Asylum-seekers must apply for asylum within 1 year of entering the U.S. or may get lesser form of relief (“withholding of removal”) • Asylum applicants can apply for work authorization after their application has been pending for 150 days • Asylees can apply for a green card 1 year after being granted asylum

25. “Semi-Lawful” Status • A decision to not-deport certain unlawful immigrants for humanitarian or policy reasons for a certain period of time • Generally provides work authorization but no path to a green card or citizenship, no sponsorship of family members, can travel internationally only in very limited circumstances • Result from executive actions, not laws; can be revoked by any President • Recipients often qualify for NYS Medicaid, but few other state benefits

26. “Semi-Lawful” Status: DACA • “Deferred Action for Childhood Arrivals,” a.k.a. “Dreamers” • Result of Executive Action by President Obama (could theoretically be revoked by future administrations) • Not affected by Supreme Court ruling in June 2016 • DACA recipients may apply for work authorization and SSN; no path to green card or citizenship; need special permission to travel • Must be renewed every two years (can be terminated due to do certain criminal convictions

27. “Semi-Lawful” Status: DACA • Applicants must be at least 15 and entered U.S. prior to 16th birthday • Applicants entered before June 2007—recent arrivals not eligible—and resided in U.S. since June 2012 • Must have high school diploma, GED, or be currently enrolled in classes (Adult Ed, GED Prep, ESL, etc.)

28. “Semi-Lawful” Status: TPS • Temporary Protected Status is granted to individuals from specified countries due to “temporary” conditions like natural disasters, disease, or war • 300,000 citizens/nationals of 13 different countries have TPS • Individuals must have entered U.S. prior to certain date • Is often (but not always) renewed • Can be terminated if conditions show improvement (e.g., Rwanda and Bosnia) or if bad country conditions seem permanent (e.g., Montserrat)

29. “Semi-Lawful” Status: TPS • DHS issues notices when TPS for a given country is granted or extended and when individuals need to re-register • Only current re-registration period is for citizens of South Sudan (as of July 2016) • TPS entitles individuals to work authorization and NYS Medicaid, but no path to a green card, limited ability to travel, and no way to sponsor relatives

30. Semi-Lawful Status: Medical Deferred Action • Option of last resort; wholly discretionary. Review of application by DHS can take months or years • A process by which a patient decides to inform USCIS of their presence in the U.S. with a request to defer any action against them (i.e., deportation) because of extenuating health circumstances/terminal illness and need for medical care not otherwise available to them • If granted, applicant may qualify for work authorization (though many applicants too ill to work) • LegalHealth generally only files applications when benefits > risk • No serious criminal history/immigration fraud; patient needs medical treatment/services, not just custodial nursing home care

31. PRUCOL: “Permanently Residing Under Color of Law” • PRUCOL is not an immigration status • PRUCOL is New York State’s benefit eligibility category for Medicaid • According to the State of New York Department of Health Information Letter (08-OHIP/INF-4): ‘The term PRUCOL alien’ refers to an alien who is permanent residing in the United States with the “knowledge and permission or acquiescence” of the federal immigration agency and whose departure from the U.S. the agency does not contemplate enforcing.’ 18 NYCRR §360-3.2(j)(1)(ii)

32. What Is PRUCOL? • PRUCOL aliens are deemed immigrant-eligible for Medicaid • There is no PRUCOL application filed with immigration: • Rather, LegalHealth may file immigration applications that can make a patient PRUCOL under the NY rules. • Applications pending with immigration can still make a patient PRUCOL even without an approval.

33. What Makes a Patient PRUCOL? • PRUCOL includes noncitizens who have an approved or pending application for an immigration status or benefit, e.g.: • Pending application for a green card • Approved Relative Petition (I-130) but no green application has been filed • Aliens who have applied for or been granted medical deferred action • Aliens who have applied for other immigration statuses including: - TPS (Temporary Protected Status); - U/T Visa as a victim of a qualifying crime/trafficking; - VAWA for abused spouses of USCs or LPRs - Stay of Removal/Deportation or under an Order of Supervision - Other applications for a permanent/long term benefit • If an application is approved an individual’s benefits eligibility might change or remain PRUCOL • If an application is denied it is harder to argue that a patient is PRUCOL

34. How Do You Prove PRUCOL status? • Medicaid applicant must provide documentation, such as notice from DHS showing the filing or approval of an application or petition (often a Form I-797, Notice of Action) • A letter of receipt from DHS indicating that a filing was made and which shows (implicitly) that DHS has knowledge of the patient’s presence in the U.S. and no action for deportation • Other proof of pending/approved applications

35. How Do You Prove PRUCOL status? • Many PRUCOL individuals will have a work authorization card with a code that corresponds to a category, e.g.: C9 = pending green card application C33 = DACA A12 = TPS A19 = U Visa • Expired card may mean they had a pending application (green card, asylum, etc.) in the past that was denied and they were unable to renew their authorization

36. Other Ways to Determine PRUCOL Status: FOIAs • If a patient is no longer eligible to apply for a benefit and has perhaps filed applications or had contact with the Immigration Service in the past, it may be possible to obtain records to prove PRUCOL status via a Freedom of Information Act requests (FOIAs) • FOIAs can take 2-6+ months • FOIAs can be incomplete or hard to obtain if records are old or if patient does not remember relevant information/dates • Depending on the available documents, a patient may require additional advocacy by LegalHealth to argue that they are PRUCOL

37. Challenges of Establishing or Determining PRUCOL Status • Family members may be unwilling to file petition (I-130) because they (incorrectly) fear the financial obligations assumed by petitioning relatives • Often, a patient is simply not eligible for any immigration benefit under the current law • Patient may have immigration violations, including fraud, which render them ineligible for any immigration benefit • Patient may have a criminal history that render them ineligible for an immigration benefit • Patient may have past deportation orders that foreclose showing government “acquiescence” to presence in U.S. • Attorney/Client privilege prevents us from revealing problems to the hospital without a patient’s consent

38. Who Is Not PRUCOL? • Visitors with valid visitors’ visas • Generally, persons with denied applications for benefits • Persons with final orders of deportation, unless deportation is being deferred/under Order of Supervision • Persons who never filed for any immigration benefit or are ineligible for any immigration benefit

39. Emergency Medical Care • All New Yorkers, regardless of their immigration status and ability to pay, have a right to emergency medical treatment, including: • Medical examination to determine whether a medical emergency exists. If determined to be an emergency, the hospital must treat and stabilize the patient • Appropriate interpretation services so patient can understand medical treatment

40. What is a Medical Emergency? • The patient has a “medical condition of sufficient severity” (including severe pain) and • Not getting immediate medical attention could result in putting the individual’s health in serious jeopardy; serious impairment to a bodily function; or serious dysfunction of any bodily organ or part. • Does not include a serious chronic condition unless presenting severe symptoms at the time, such as chemotherapy needed to stabilize a malignant cancer • Up to the physician and the facility to characterize the need for treatment as necessitating emergency treatment.

41. Non-Emergency Medical Care for Medicaid-ineligible Noncitizens • Several options for uninsured patients to obtain non-emergency medical care: • Public hospitals • Hospital’s sliding scale or charity care programs • Federally funded health clinics • Undocumented pregnant women in New York are eligible for Medicaid for prenatal and postnatal care (PCAP) and WIC. • Undocumented children in New York are eligible for CHIP B

42. Immigrant Eligibility for Other Benefits • Depending on an immigrant’s status, entry date and years in the U.S., the individual may be eligible for various federal and state benefits such as Social Security Disability or Retirement, SSI, Food Stamps or Public Assistance (welfare) • Social Security Disability/Retirement benefits: • Must have a green card and a sufficient on-the-books work history • Supplemental Security Income (SSI): • LPR who were lawfully residing in US before 8/22/96; or, • LPR lawfully residing in US after 8/22/96 who can be credited with 40 qualifying work quarters (≈10 years, not consecutive)

43. Examples of Eligibility by Program • Public Assistance (welfare): • Green card holders are immigrant-eligible • PRUCOL noncitizens may be eligible in NY for Safety Net assistance • Food Stamps: • must have green card for at least 5 year before immigrant-eligible (can be shorter if a child or disabled). PRUCOL noncitizens are not eligible for food stamps

44. Executive Actions on Immigration • On November 20, 2014, President Obama announced a series of initiatives reflecting the administration’s immigration enforcement priorities • Lawsuit put program on hold; Supreme Court heard arguments on April 20, 2016, and upheld lower court’s injunction. Program will not proceed at this time. • There are no applications available; patients should be wary of rumors and/or legal advice from unlicensed practitioners or “notarios” • No further updates expected until outcome of 2016 elections in November

45. What was Executive Action? • “Deferred Action”: a formal grant of prosecutorial discretion; an agreement to not remove an individual from the country for a set period of time • Confers lawful presence but not a lawful status • Can result in work authorization, eligibility for Medicaid • Will notresult in a green card, path to citizenship, the ability to petition for family members overseas, or the ability to freely travel and return to the U.S.

46. Who Would Have Benefited from Executive Action? • Expansion of Deferred Action for Childhood Arrivals (DACA) to people who: • Arrived in the U.S. before turning 16 • Have been present in the U.S. since January 1, 2010 • Current DACA deadline is June 15, 2007 • Can be any age at time of application • Current DACA rules exclude anyone who was over 31 on June 15, 2012 • Can obtain work authorization for 3 years • Current DACA applicants are authorized for 2 years

47. Who Would Have Benefited from Executive Action? • Deferred Action for Parental Accountability (DAPA) for: • Parents of U.S. citizen and lawful permanent resident (green card) children who were born on or before November 20, 2014; • Who have been present in the U.S. since January 1, 2010– recent arrivals not eligible! • Applicants with arrests, convictions, past immigration violations or orders of removal/deportation should speak with an attorney before applying

48. Conclusion • Immigration is complicated area of law • Patients with questions should be referred for full intake at LegalHealth clinic • LPRs should consider naturalization! • Benefits eligibility can vary greatly based on whether application is pending or approved, type of status, date of entry to U.S., nationality, age, disability/health, etc. • Patients with questions should be referred for full intake at LegalHealth clinic

49. Questions? • Sylvia Miller, SMiller@nylag.org, (212) 613-7344 Staff Attorney, LegalHealth

50. For more information about LegalHealth visit www.legalhealth.org.