2017 ALERT - As of March 5, 2017, the law explained in this article is still in effect. The Trump Administration has not changed the law on immigrant eligibility for Medicaid or other public benefits and has not changed the rules on when someone who receives Medicaid or other government benefits is considered a "public charge" or is at risk of removal or being denied admission to the U.S. However, a leaked draft of an Executive Order has raised some concerns. See this Fact Sheet by The Legal Aid Society about this draft of the Executive Order regarding "public charge." Also see this other information by The Legal Aid Society on Trump Executive Orders regarding immigrants. And this information regarding Legal Aid Society Deportation Hotline.
Current Medicaid Rules For People Permanently Residing Under Color of Law but Who Do Not Have "Green Cards"
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.
For a full explanation, see the Immigrant Eligibility Handbook. 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.
Current NYS DOH policy defining the PRUCOL category can be found at:
Immigrants should be classified as PRUCOL by the social services district if :
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
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.?
An official application filed with USCIS for adjustment of status to lawful permanent alien (get a green card), for asylum, temporary protected status, or suspension of deportation. If an official written application was filed, and
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).
The immigrant or his/her representative has made a request by letter to the immigration agency requesting a particular recognized type of relief, such as deferred action or voluntary departure, with proof of receipt by certified mail. These requests are usually based on humanitarian or medical grounds.
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:
Deferred Action – which indicates that USCIS has no immediate intention of deporting the individual out of humanitarian reasons or because the person may have an opportunity to get permanent status;
An Order of Supervision – granted by ICE to someone who was ordered deported but because of humanitarian
considerations, or because there is no country to which the person may be deported, is permitted to
remain in the U.S. but usually with the condition that he or she regularly report to ICE;
Parole of less than 1 year – which may be granted to a person for humanitarian reasons until a determination
of admissibility can be made ( Cubans or Haitians paroled into the U.S. are considered entrants and
are in the “qualified alien” category);
A “K3” or “K4” 11 visa – which may be granted to spouses and children of US citizens to allow them to
live and work in the U.S. while they wait for the processing of their applications for permanent residence;
A “V” visa – which may be granted to the spouses and children of lawful permanent residents (LPR) who
are waiting for the processing of their immigration applications based on petitions filed before December
A “U” visa – which may be granted to people who have been victims of serious crimes and who are willing
to cooperate with law enforcement to prosecute the perpetrator, and
Temporary Protected Status (TPS) – a temporary, non-immigrant status which is sometimes granted by
the U.S. to persons coming from a particular country that is going through civil strife or has had a natural
DACA or Deferred Action for Childhood Arrivals Status -- See NYS GIS 13-MA-011 (May 7, 2013)
B. The Immigration agency has not acted on an application or a letter, of the types described in #1 above.
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.
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.
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)
A person who entered the U.S. legally, and is here legally under a TEMPORARY visa, such as a tourist or student visa
A person who entered the U.S. legally by a temporary visa, such as a tourist or student visa, but that visa expired, and they never again filed for any permanent immigrant status or any other relief, as described above
A person who entered the U.S. illegally, without any documentation at all, and never again filed for any of the statuses or relief described above
The individuals in these "non-immigrant" categories are eligible only for "Emergency Medicaid," which may include some forms of cancer treatment, and pregnant women through 60-days post-partum. ("Pre-Natal Care Assistance Program"= PCAP). They may also seek health care options for the uninsured.
IMMIGRATION RULES ARE VERY COMPLICATED.
For a handy guide to reading your client's I-94 and other immigration documents -- with photographs of key immigration documents and explanations of what the codes mean, see “Immigrant Eligibility for Publicly Funded Health Care Benefits,”
Do not send a letter to any Immigration agency without consulting an immigration expert. You can find one serving your client's area by using http:/lawhelp.org/NY and clicking on IMMIGRATION.