LegiStorm

Summary:

The degree to which foreign nationals (noncitizens/aliens) should be accorded access to certain benefits as a result of their presence in the United States, as well as the responsibilities of such persons given their legal status (e.g., immigrants, nonimmigrants, unauthorized aliens), often figures into policy discussions in Congress. These issues become particularly salient when Congress considers legislation to establish new immigration statuses or to create or modify benefit or entitlement programs. The 111th Congress enacted the Patient Protection and Affordable Care Act (P.L. 111-148), which has been amended by the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152) and several other bills. (ACA refers to P.L. 111-148 as amended by P.L. 111-152 and the other legislation.) The ACA created new responsibilities (e.g., the requirement that most people in the United States obtain health insurance) and new benefits (e.g., tax credits to help certain people purchase health insurance), and it addressed the eligibility and responsibility of foreign nationals for these provisions. One issue that has arisen during some debates to amend provisions in the ACA and during discussions of immigration reform is the eligibility of foreign nationals for some of the ACA’s key provisions. At the center of noncitizen eligibility for provisions under the ACA is the term “lawfully present.” Aliens who are “lawfully present in the United States” are generally subject to the health insurance mandate and are eligible, if otherwise qualified, to participate in the exchanges (the health insurance marketplace) and for the premium tax credit and cost-sharing subsidies available to certain individuals who purchase insurance through an exchange. For purposes of the ACA, “lawfully present” has been defined in regulation and includes lawful permanent residents (LPRs), asylees, refugees, foreign nationals admitted under any nonimmigrant visa who are in status, and certain other classifications under the Immigration and Nationality Act (INA). To purchase insurance through an exchange, a noncitizen must be expected to be lawfully present for the entire period of coverage. Although the minimum period of coverage was established by regulation as 12 months, the exchanges will decide on an enrollment period based on the length of time the alien is authorized to be in the country. The ACA bars foreign nationals who are not lawfully present from purchasing insurance through a health insurance exchange. In addition, certain individuals who purchase insurance through an exchange may be eligible for the premium tax credit and cost-sharing subsidies to help defray the cost of the insurance. To be eligible, an applicant must meet income requirements based on family size and the federal poverty level, and must also file a tax return in order to claim the credit. Noncitizens who are not lawfully present are ineligible for the premium credit and cost-sharing subsidies because they are barred from purchasing insurance through an exchange. To enforce the noncitizen eligibility requirements under the ACA, the act required the Secretary of Health and Human Services to establish a program to determine whether an individual who is to be covered in the individual market by a qualified health plan offered through an exchange or who is claiming a premium tax credit or cost-sharing subsidy is a citizen or national of the United States or an alien lawfully present in the United States. This system first checks the Social Security Administration (SSA) records. If SSA can confirm that the person is a citizen, then the check stops at that point. If the person is a “noncitizen” in SSA records, the system checks against Department of Homeland Security (DHS) records to confirm lawful presence. The Departments of Health and Human Services and Homeland Security have stated that no information collected as part of enrollment in an exchange plan will be used for any civil immigration enforcement actions.