Medicaid for Immigrants who are Not Permanent Residents (Do Not have "Green Cards")-- PRUCOL and Temporary Non-Immigrant Eligibility

September 2018 ALERT -  On  Sept. 22, 2018, the Trump Administration proposed changes on the standards for deciding whether an immigrant  who receives Medicaid or other government benefits is considered a "public charge" -- which can result in denial of Lawful Permanent Resident status (green card),  deny extensions of non-immigrant visas, and denial of admission.  Read more about this here.   While PRUCOL immigrants in NYS will still be eligible for Medicaid, the rule, if adopted, will deter many from accessing health care out of fear of adverse immigration consequences.  See New England Journal of Medicine article, A New Threat to Immigrants’ Health — The Public-Charge Rule, Sept. 8, 2018.    See more about this here.

Current Medicaid Rules For People who are Not Lawful Permanent Residents (Do Not Have "Green Cards")

Introduction

Federal law, since 1996, limits Medicaid eligibility  to US citizens and “Qualified Aliens,” which include:

  1. Lawful Permanent Residents (LPR or “green card”) – under federal law, all but pregnant women & children have a 5 year waiting period.  AND 
  2. Humanitarian immigrants - Refugees & Asylees, battered persons & trafficking victims, people in armed services, people granted withholding of deportation, and immigrants from certain countries granted  relief at different times, like Haitans, Cuban entrants, etc.

See Empire Justice Center's Immigrant Eligibility Crosswalk which gives detailed eligibility information for immigrants for various health programs (2015)(But see this later  information about 2016 changes for non-immigrants)

New York State, fortunately, is more liberal.  Many people mistakenly think an immigrant must have a "green card" (formally called a "lawful permanent resident" ) or be a refugee,  in order to be eligible for Medicaid.   This is not true, at least not in New York State.  Thanks to the New York State Constitution and a 2001 decision of New York's highest court in a case called Aliessa v. Novello,  many (but not all)  immigrants who do not have "green cards" are eligible for Medicaid in New York State.  Their Medicaid is paid for by the State exclusively, without any federal contribution -- but that does not affect the immigrant.  The Medicaid they have is the same. 

New York grants Medicaid eligibility to two broad categories of immigrants who are not lawful permanent residents or humanitarian immigrants, described below.

I.  Persons Residing Under Color Of Law (PRUCOL)

II.  Temporary non-immigrants who are lawfully present" in the U.S. and residents of New York State,

I.  IMMIGRANTS PERMANENTLY RESIDING UNDER COLOR OF LAW (PRUCOL)

Immigrants who do not have a green card (permanent resident alien formally known as  the "qualified alien category")  but who are permanently residing under color of law (PRUCOL) are eligible for full Medicaid in New York State.    (see also 

New York’s Exchange Portal: A Gateway to Coverage for Immigrants, published 9/14/15, by Empire Justice Center reviews current rules on eligibility and describes how immigrants can access health care through NYSof Health portal, including for emergency care for those who are undocumented and not PRUCOL.   

Current NYS DOH policy defining the PRUCOL category can be found at:

Immigrants should be classified as PRUCOL by the social services district if :

  1. They can provide evidence that the USCIS or ICE (the main federal immigration agencies within the Dept. of Homeland Security) knows that they are here (see more below on what evidence is needed) and

  2. The immigration agencies are not contemplating enforcing their departure.  This is indicated either because:

These factors are described more below. 

1.  What is evidence that Immigration agencies know that the client is here in the U.S.?

The client is PRUCOL as long as the application is pending, and in some circumstances PRUCOL status may continue after the application is denied.  For example,  a notice denying a deferred action application states, “Denial of a request for deferred action does not necessarily mean that USCIS intends affirmatively to pursue your client’s removal.”   Some Fair Hearing decisions state that while the application may have been  denied, the facts and circumstances of the case indicate that the federal government does not intend to affirmatively enforce the person's removal.  See, e.g. Fair Hearing No. 6805696N (NYC 10/17/14),  Fair Hearing No. 6901593N (NYC 3/24/15), and Fair Hearing No.6417893Q (Dutchess Co. 1/17/2014). 

2.  WHAT PROOF IS NEEDED THAT AN IMMIGRATION AGENCY IS NOT ENFORCING THEIR DEPARTURE? 

      Either A or B:

A.   USCIS (or ICE) has expressly given them permission to remain in the U.S. , by granting:

 B.    The Immigration agency has not acted on an application or a letter, of the types described in #1 above.

  1. FORMAL APPLICATION to adjust status, etc.  - if Immigration service has not acted on a FORMAL APPLICATION, applicant is PRUCOL as long as the application is pending, no matter how long, until it is actually DENIED or there is some other indication that his her departure is being enforced.

  2. REQUEST BY LETTER FOR RELIEF from deportation -- Merely showing proof that the letter was sent is not enough.   The immigration agency must have been afforded "reasonable time" to consider the request, which the State Dept. of Health has said is six months from mailing the initial letter.  See 08 OHIP/INF-4 p. 6.   But the immigrant must ALSO show that the request was made in good faith by showing that s/he or her representative made at least one follow-up  inquiry about the status of the request with the Immigration agency during that six months.  

    • So - you must wait six months before filing a Medicaid application based on PRUCOL status, if the PRUCOL status is based on a letter, rather than a formal application to adjust status, and you must enclose proof that both the letter AND a follow-up letter were mailed to the immigration agency.    

  3. Requests for Deferred Action for Childhood Arrivals (DACA) (began 8/2012). The Dept. of Homeland Security (DHS) has decided to focus its attention on the removal of individuals who pose a danger to national security or a risk to public safety, including aliens convicted of crimes, with emphasis on violent criminals, felons and repeat offenders. The DHS will exercise prosecutorial discretion to ensure that enforcement resources are not expended on low priority cases, such as individuals who were brought to this country through no fault of their own as children. To be eligible for DACA, these individuals cannot have been convicted of a felony offense, a significant misdemeanor or multiple misdemeanor offenses. In New York State, these individuals will be PRUCOL, but are not eligible for FFP. See NYS GIS 13-MA-011 (May 7, 2013)

WHO IS NOT ELIGIBLE for PRUCOL status? 

II.   Temporary Non-immigrants who are "lawfully present" in the U.S. and residents of New York State

Temporary non-immigrants are individuals who are allowed to enter the United States temporarily for a specific purpose and for a specific period of time. They are commonly referred to as short-term visa holders. There are more than two dozen temporary non-immigrant categories. A few of the more common temporary non-immigrant categories are tourists, students and visitors for business.  See list at Temporary Non-Immigrant Document Types and Visa Codes, which is Attachment II of  GIS 16 MA/002 - Changes in Medicaid Coverage for Temporary Non-Immigrants.  This  list also includes  examples of the types of documentation that temporary non-immigrants will typically possess. Under the GIS, the individual must not have violated the terms of the status under which he or she was admitted to the U.S. (i.e., the individual must not have overstayed his or her visa.

Before this GIS was issued in 2016, temporary non-immigrants were only eligible for Emergency Medicaid, unless they were pregnant women or children.  NYS is exercising an option afforded to states to cover all temporary non-immigrants if they are "lawfully present" in the U.S., are state residents, and meet all other Medicaid eligibility requirements. This option is granted under the  Children's Health Insurance Program Reauthorization Act of 2009, as interpreted in guidance issued by CMS in 2010.  See GIS. 

To determine if they are state residents, the "Residency Review Worksheet" (Spanish version) must be given to all temporary non-immigrants applying for Medicaid.   The applicant must answer YES to one of the questions to qualify as a resident.  See the GIS for more information.  If they do not qualify as a resident, they are only eligible for Emergency Medicaid -- again, unless they are pregnant women or children. 

The GIS and all of its attachments can be found here

WARNING:  IMMIGRATION RULES ARE VERY COMPLICATED.



Article ID: 33
Last updated: 26 Sep, 2018
Revision: 19
Medicaid -> Immigrant Access -> Medicaid for Immigrants who are Not Permanent Residents (Do Not have "Green Cards")-- PRUCOL and Temporary Non-Immigrant Eligibility
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