New and proposed immigration requirements for documented and undocumented immigrants could impact employers who offer health care coverage.
Prior to the new requirement, immigrants who wanted to qualify for an employer-sponsored health
plan had to be able to show that they had a green card, permanent resident or citizenship status.
Undocumented immigrants could get coverage if their spouses legally worked in this country and had
access to an employer-sponsored plan.
New Requirements
All refugees, asylum seekers or people on temporary visitor visas now must prove they can obtain
health insurance before they receive a visa. Visa applicants will have to demonstrate that they will be
covered by an approved health insurance plan within 30 days of entering the United States or they will
have to prove that they have the financial means to “pay for reasonably foreseeable medical costs.”
The new requirement was put into effect on Nov. 3 and is part of a presidential proclamation on
immigrants and health care, issued by President Trump on Oct. 4.
The requirement is grounded in the U.S. immigration law’s “public charge” doctrine. A public charge
is someone who receives certain public benefits. Under Section 212(a)(4) of the Immigration and
Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust their
status to permanent resident (obtaining a green card) must not be (or likely to be) a public charge at the
time they apply.
If you hire an employee who is in the process of obtaining a visa, you will need to ensure they
comply. They will not be in compliance if they purchase a plan using subsidies through the Affordable
Care Act (ACA) Health Insurance Marketplace or Exchanges; or through the Children’s Health Insurance
Program (“CHIP”) for dependents. However, employer-provided coverage, individually purchased
plans, and catastrophic or short-term limited-duration plans will count.
As an employer, you are required to provide notices to employees about the availability of health
insurance through the Marketplace and annually provide information about the availability of CHIP. You
may want to consider adding information to these notices regarding the potential impact on their
immigration status by accepting either of these benefits.
Another option is to upgrade your health benefits, particularly for dependents, so your non-U.S.
citizen employees will not be tempted to use Marketplace or CHIP coverage.
Proposed Regulations
Recently, a draft of proposed Department of Homeland Security (“DHS”) regulations was leaked. If
the draft is approved, it would modify the public charge rules several ways:
1 Any dependence on public benefits would be an issue (the previous rule allowed not more than 50
percent of public benefits).
2 Adding benefits would place the recipient on the public benefits list.
3 Assistance received by a non-US citizen for the benefit of dependents, even US citizen dependents,
would be considered in the public charge.
If these regulations are approved, employers could find more non-US citizen employees asking to
transfer from the Marketplace, CHIP or Medicaid to their employer’s health plan. This may not be
possible because employees only can make changes in plan elections during open enrollment or when
certain changes occur. The proposed rules would not count as a change in status.
The Future
Almost half of Americans have health coverage through their employer, according to the Kaiser
Foundation. Also almost half of the 10.5 million undocumented immigrants in 2017 did not have health
coverage, according to the Pew Research Center. Many of the immigrants who are employed work in
low-wage jobs that do not provide employer-sponsored health benefits, or they cannot afford coverage.
People in the country illegally do have some options. Undocumented immigrants can obtain low-cost
care through community health centers. Also, federal law requires hospitals to screen and stabilize any
patient who seeks emergency care, with some costs covered by Medicaid. Six states and Washington,
D.C. use state-only funds to provide Medicaid coverage for income-eligible children through age 18
regardless of immigration status. California recently expanded coverage to young adults through age 25.
For a sliding-scale fee, illegal immigrants can receive primary care and prescription drugs at federally
funded health care centers in 11,000 communities.
Many of the 2020 Democratic presidential candidates showed interest in expanding health care
coverage for undocumented immigrants, although none has provided details of how it would be
accomplished.
While some observers worry that free health coverage for illegal immigrants would be expensive and
attract more immigrants, others say the expense of providing primary care would eventually pay off,
because it would keep people from waiting until they were very sick to seek treatment. The
Congressional Budget Office has not provided estimates on actual costs.
If you need help and advice regarding how immigration rules may affect your firm’s health care
program, please contact us.