This section will discuss which immigrant survivors of domestic or sexual violence or human trafficking qualify under federal or state law for healthcare subsidies, if they are low income. The majority of immigrant survivors will not qualify for federal funded Medicaid. As a result, since many advocates, attorneys and state and federal benefits providers assume that the immigrant survivor they are assisting will not qualify for Medicaid funded healthcare, victims who do qualify can be either wrongly turned away or incorrectly told that they do not qualify.
The goal of this section is to assist advocates, attorneys, healthcare and benefits providers in ensuring that when qualified immigrant survivors and/or their derivatives apply for healthcare subsidies, they receive them. This section includes a discussion about the categories of immigrant crime victims who, if they meet benefits program eligibility requirements (e.g., low income, state of residence), qualify for healthcare subsidies due to their immigration status or filing of an application for immigration relief.
Qualified Immigrants: Pre-August 22, 1996 Entrants or 5+ Years of Qualified Immigrant Status
Qualified immigrants who first entered the United States prior to August 22, 1996 are eligible under federal law for healthcare subsidies, including Medicaid. With the creation of the Deferred Action for Childhood Arrivals (DACA) program, advocates and attorneys working with immigrant crime victim survivors are encountering growing numbers of immigrant victims of spousal abuse and child abuse who qualify as VAWA self-petitioners, VAWA suspension of deportation and cancellation of removal applicants and battered spouse waiver applicants who have been continually present in the United States since before August 22, 1996. For those immigrants who qualify for VAWA immigration relief who entered the United States before August 22, 1996, once they become qualified immigrants, they are directly able to access subsidized healthcare and other federal means tested public benefits. This is because immigrants who entered prior to August 22, 1996 are not subject to the 5-year bar. As further deferred action becomes available to a larger group of immigrants in 2015, it will be important for advocates and attorneys working with qualified immigrant victims of spousal abuse and child abuse to screen clients to identify those who qualify for direct access to subsidized healthcare.
For a discussion of treatment of immigrants who entered the United States before August 22, 1996 under federal public benefits laws, see U.S Department of Justice, Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 FR 61344, 61415 (Nov. 17, 1997)
The following immigrants with qualified immigrant status for more than five (5) years are also eligible for federal healthcare subsidies, including Medicaid:
- Lawful permanent residents;
- Conditional permanent residents;
- Persons granted cancellation of removal;
- Persons granted conditional entry;
- Persons paroled into the United States for a year or more;
- Battered spouse waiver applicants;
- VAWA self-petitioners with prima facie determinations or approvals;
- VAWA cancellation of removal applicants with prima facie determinations or approvals;
- VAWA suspension of deportation applicants with prima facie determinations or approvals; and
- Immigrants or their children who have been battered or subject to extreme cruelty by their U.S. citizen or lawful permanent resident spouse or a member of the spouses’ family who resides in the same household if the immigrant has a pending or approved family based visa petition filed on their behalf by their U.S. citizen or lawful permanent resident spouse
For a full discussion of qualified battered immigrant eligibility for healthcare and other public benefits, see Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants, Cecelia Olavarria, Amanda Baran, Leslye Orloff, & Grace Huang, Chapter 4.2: Public Benefits Access for Battered Immigrant Women and Children (2013)
Qualified Immigrants Exempt from the 5-Year Bar
There are certain groups of qualified immigrants who are directly eligible for healthcare subsidies (federal and state) because they are exempt by federal statute from the 5 year bar to benefits access. To be exempt from the 5-year bar, immigrants must have been continuously present in the United States from the date of their last entry before August 22, 1996 through the date they became qualified immigrants. Immigrants can maintain continuous presence for public benefits eligibility purposes despite some minimal absences from the United States (under 30 days for a single absence, but no more than a total of 90 days for combined multiple absences of less than 30 days). This exemption applies to the following categories of immigrants regardless of whether they entered the United States before or after August 22, 1996:
- Victims of severe forms of human trafficking with certification from the Office of Refugee Resettlement, U.S. Department of Health and Human Services;
- Note: Only trafficking victims with continued presence and Bona Fide determinations in T visa cases receive certification. For further information, see Jordan Tacher & Leslye Orloff, Trafficking Victim Benefits Eligibility Process
- Cuban/Haitian entrants;
- Immigrants granted withholding of deportation; and
- Veterans and immigrants on active military duty, their spouses and their unmarried children under the age of 21 (includes Filipino, Hmong, and Highland Lao);
- The immigrant spouse remains eligible for an exemption from the 5-year bar only if the immigrant spouse remains married to the veteran spouse.
- Divorce during the five (5) years after the immigrant spouse becomes a qualified immigrant results in the immigrant spouse becoming subject to the 5-year bar and losing access subsidized healthcare for the remainder of the 5-year bar period
- If the veteran spouse dies, the surviving immigrant spouse may continue to receive healthcare subsidies unless they remarry. Upon remarriage they will lose access to the subsidy for the remainder of the 5-year bar period, except in limited circumstances when the new marriage brings with it access to exemption from the 5 year bar (e.g., marrying another veteran).
For an overview of immigrants exempt from the 5-year bar, see Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault, Soraya Fata, Leslye E. Orloff, & Monique Drew, Chapter 16 Access To Programs And Services That Can Help Victims of Sexual Assault pp19-21 (2013)
Qualified Immigrant Children Under 21 Years of Age
Children can become qualified immigrants because they have filed or received an approved application for immigration relief as a qualified immigrant or are exempt immigrants included in one of the two lists above. Children included in their parents’ applications can receive immigration benefits because they are included in their parent’s applications for immigration relief contained in the qualified immigrant or exempt qualified immigrant lists above. Advocates and attorneys will most commonly encounter children included in battered immigrants’ VAWA self-petitions. Both battered immigrants and their children included in their application are VAWA self-petitioners. Once a prima facie determination is received in the VAWA self-petitioning case, the under 21-year old child of the applicant becomes a qualified immigrant. There are two avenues by which the VAWA self-petitioner’s qualified immigrant child will be directly eligible for subsidized healthcare.
- The immigrant child has been continuously present in the United States since before 8/22/96; or
- The immigrant child lives in a state that offers healthcare subsidies to qualified immigrant children. (See the discussion of state funded benefits of certain categories of immigrants below.)
Eligibility Based on 40 Quarters of Work Credit
Qualified immigrants who have earned or can be credited with 40 quarters of work can also qualify for subsidies because they have earned an exemption from the 5-year bar. A “qualifying quarter” is a unit of wages under Social Security law and is calculated upon the basis of how much a person earns in a calendar year. For the dollar amount needed to earn per quarter for 4 quarters for 2005 through 2014, visit the social security website, http://www.socialsecurity.gov/oact/cola/QC.html
Other important Notes on 40 Quarters of Work Credit:
- It will take 10 years of work credit for an individual to earn 40 quarters of work credit.
- Income earned from all work immigrants have done can be counted towards attaining 40 qualifying quarters of work credit, including income from work performed while the immigrant was undocumented.
- Immigrants who want to receive credits for work performed while the immigrant was undocumented can file for and obtain an Income Tax Identification Number (ITIN) that can be used to file taxes for those years of work.
- Immigrants can meet the 40 quarter test using quarters earned by a spouse or parent by adding these quarters together, if any of the following occur:
- Immigrant children add the quarters earned by their parent(s) before the child’s 18th birthday to any quarters the immigrant child may have worked; or
- Immigrant spouses add the quarters earned by their spouse to the quarters the immigrant spouse earned so long as the marriage continues
- If the spouse dies, the immigrant widow(er) can continue to receive credit for the quarters unless the immigrant spouse remarries
- Divorce during the five (5) years after the immigrant spouse becomes a qualified immigrant results in the immigrant spouse losing the ability to count the quarters of the former spouse and can result in the applicant spouse becoming subject to the 5-year bar and losing access subsidized healthcare for the remainder of the 5-year bar period
State Funded Healthcare Subsidies
In addition to choosing to run their own healthcare exchanges, states have the option to offer state funded subsidized healthcare to immigrants living in their state. Subsidized healthcare is offered through Medicaid or Medicaid-like programs, which fund healthcare for adults or state child health insurance programs. Whether an immigrant qualifies for state funded healthcare subsidies varies significantly from state to state. The two groups of immigrants most likely to be able to receive subsidized health are qualified immigrants and lawfully present immigrant children and pregnant women.
Qualified immigrants include VAWA self-petitioners and the children included in their applications when they receive prima facie determinations, approximately six (6) months after the self-petition is filed. Victims of severe forms of human trafficking with continued presence or bona fide determinations in T visa cases can access public benefits available to qualified immigrants. VAWA cancellation of removal and suspension of deportation applicants with prima facie determinations from an immigration judge are also qualified immigrants. For rules on obtaining qualified immigrant determinations from immigration judges, click here.
In states that offer child healthcare and/or prenatal care to all persons without regard to immigration status or to immigrants who are permanently residing under color of law (PRUCOL), U visa applicants can receive child healthcare and/or prenatal care. U visa applicants and their children become eligible for healthcare subsidies as lawfully present immigrants once their U visa application has been wait-list approved and they have been granted deferred action status.
The following list summarizes what subsidized healthcare states offer that immigrant survivors in particular may be eligible to receive:
- Very few states provide access to subsidized healthcare to limited groups of adult immigrants. What is offered is access to state funded Medicaid or Medicaid like programs.
- Qualified Immigrants (≈4 states, 1 state battered qualified immigrants only)
- Lawfully present immigrants (≈2 states, 1 state VAWA, T or U applicants only)
- Many states provide access to subsidized healthcare for specific groups of immigrant children under the age of 21:
- Qualified Immigrants (≈25 states)
- Lawfully present immigrants (≈21 states)
- U visa applicants (≈15 states)
- Subsidies for prenatal care and/or healthcare for pregnant immigrant women is also commonly provided:
- Qualified Immigrants (≈27 states)
- Lawfully present immigrants (≈24 states)
- U visa applicants (≈22 states)
Advocates and attorneys working with immigrant crime survivors should consult the following resources to determine what healthcare subsidies are available to which groups of immigrant survivors in the state in which the immigrant survivor resides.
References and Further Information:
- Interactive Public Benefits Map
- Medical Assistance Programs Updates
- Carly Erickson & Leslye Orloff, Federal, Partnership, and State Exchanges That Provide State and State-Option Funded Medicaid or Medicaid-Like Services
- Rocio Molina, Eligibility Under the Affordable Care Act for Survivors of Domestic Violence, Trafficking, and Other Serious Crimes
- Resources from the National Immigration Law Center are available at: http://www.nilc.org/guideupdate.html and http://www.nilc.org/health.html
© 2015 National Immigrant Women’s Advocacy Project. The contents of this publication may be reprinted. Any reprinting must be accompanied by the following acknowledgement: This material was reprinted from the National Immigrant Women’s Advocacy Project, American University, Washington College of Law.
This project was developed under grant number 2013-TA-AX-K009 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions and recommendations expressed in this program are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
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