For older immigrants, becoming eligibile for public benefits involves a maze of immigration and program eligibility rules that are becoming increasingly complex and a major challenge to navigate. Nearly 7 million U.S. residents age 65 and older are immigrants.
Background on Eligibility for Public Benefits
In 1996, Congress imposed new barriers for immigrants to access means-tested federal public benefits under the Personal Responsibility and Work Opportunity Reconciliation Act. This greatly restricted immigrants’ access to Medicaid, CHIP (Children’s Health Insurance Program), TANF (Temporary Assistance for Needy Families), SNAP (Supplemental Nutrition Assistance Program) and SSI (Supplemental Security Income). The Act created new categories of immigration status known as “qualified” and “not qualified.” Qualified immigrants include individuals with statuses such as lawful permanent resident (LPR/green card holder), refugees, asylees, abused spouses, and trafficking survivors.
To be eligible for these programs today, older immigrants must have an eligible immigration status (or citizenship) and satisfy the benefit program’s requirements such as residency, work history, disability determination, and income, which may vary by state. Eligibility for federal benefits that are not means tested such as Medicare and Social Security have their own unique considerations.
Further complicating access to public benefits programs, the Trump administration has proposed a rule that would greatly expand the long-standing federal immigration law’s “public charge” test to include many of these programs. If enacted, the government could use this rule to deny green cards or admission to the U.S. to immigrants who apply for, receive, or may one-day be eligible for these benefits. Its chilling effect is described in a separate section below.
As a general rule, individuals must be “lawfully present,” meaning federally authorized to be in the United States, to be eligible for most federal public benefits. Lawfully present is broader than qualified. All qualified immigrants are lawfully present, as are other statuses such as individuals with temporary protected status and individuals with non-immigrant visas, including visas for workers and students. On the other hand, individuals who are undocumented and not currently federally authorized to be in the U.S. are ineligible for major federal public benefits.
Beyond the basic rules of having an eligible immigration status, each of the major federal benefit programs has its own rules. The eligibility rules for Social Security and Medicare for lawfully present individuals residing in the U.S. with at least 40 qualifying quarters of work are the same as for citizens, but there are different rules for immigrants without sufficient work history and those who reside outside the U.S.
For most means-tested federal benefits, including Medicaid and SSI, immigrants generally must have a “qualified” status, though a few categories of lawfully present beneficiaries who are “not qualified” may be eligible. For SSI, immigrants must also meet an additional condition to be eligible and, in some cases, their benefits are limited to seven years.
Moreover, most qualified immigrants are ineligible for means-tested federal benefits programs for the first five years they have a qualified status. However, a few important exceptions to this socalled “five-year bar” or waiting period include:
1) Qualified immigrants who entered the U.S. before August 22, 1996, and remained in the U.S. until they obtained a qualified status. 2) Certain “humanitarian immigrants” and qualified immigrants who are honorably discharged U.S. veterans or on active military duty and their spouses or children. 3) Qualified immigrants who have at least 40 quarters of work history in the U.S. or who are receiving disability-related assistance.
States can choose to use their own funds to provide benefits to qualified immigrants during their five-year waiting period. Also, states can set their own eligibility rules for programs such as Medicaid, TANF, and SNAP. For example, in most states, immigrants are eligible for Medicaid if they have had a “qualified” status for five years or have an exemption from the five-year bar.
States have the option to expand Medicaid coverage using federal funding to additional groups of immigrants such as all lawfully residing children and pregnant women. Some states use their own funds to provide coverage during the five-year waiting period, or to provide coverage to other individuals who are not qualified or even not lawfully present. This may include undocumented individuals as well as someone whose visa expires. California, for example, just expanded Medicaid coverage to all immigrants (even undocumented) under age 26. On the other hand, several states restrict Medicaid coverage to qualified immigrants even further than described above. For example, in Texas, most qualified immigrant adults who entered the U.S. on or after August 22, 1996 are ineligible, even if they have met the five-year bar.
Because Medicare is not a means-tested benefit, it has different eligibility rules than the programs discussed above. To enroll in either Medicare Part A or Part B, an individual must either be a U.S. citizen or be lawfully present in the United States. Individuals who are not lawfully present are ineligible to receive any Medicare coverage under any circumstances. Whether a lawfully present immigrant has to meet additional requirements to be eligible for Medicare depends on his or her work history. Citizens and lawfully present individuals who are age 65 or older and eligible for Social Security because of their work history (or that of a spouse) or who have been receiving SSDI for 24 months qualify for premium-free Part A and do not face any length of residency requirement. This includes lawful permanent residents, individuals in Temporary Protected Status (TPS), and others who have sufficient work credits. Because they qualify for premium-free Part A, they can enroll in Part A and Part B without any length of residency requirement.
Here’s an example: Ms. Lopez is a green card holder who came to the U.S. three years ago. She married another green card holder shortly after arriving. Her husband, who is now 66, has resided in the United States for 15 years and has more than 40 quarters of work credits, making him eligible for premium-free Part A. Ms. Lopez is turning 65. Because of her husband’s work history, she can start her Part A and Part B coverage right away. In contrast, a non-citizen who does not qualify for premium-free Part A must be a legal permanent resident with five years of continuous residence in the U.S. immediately prior to Medicare enrollment. The five-year period of U.S. residency begins the day the individual arrives in the U.S. with the intention of establishing a home. The period can start, for example, when the individual arrives under refugee or asylee status before becoming a legal permanent resident. It cannot start, however, with visitor status since visitors are assumed to be retaining their foreign residence.
Work History and Qualifications
In another example, Mr. Rao, a legal permanent resident, came to the United States at age 62 to join the family of his son, a U.S. citizen. He has taken on part-time work but mostly helps care for his grandchildren. Because he does not have enough work history in the U.S. to qualify for premiumfree Part A, Mr. Rao must wait for five years from his date of entry to the United States to qualify for Medicare coverage. When he qualifies he can enroll in premium Medicare Part A (with a premium) and Part B. He also has the option or can decide to enroll only in Part B.
Medicare Part D and Part C do not have separate citizenship or length of residency requirements. Medicare beneficiaries with either Part A or Part B coverage can enroll in Part D, the prescription drug benefit that is administered through private health plans. Beneficiaries with both Part A and Part B coverage have the option to receive their benefits through managed care, called Medicare Advantage. Part D and Medicare Advantage plans are prohibited from requesting any documentation of citizenship or alien status.
Immigrants who are eligible for and enrolled in either Part A or Part B may also be eligible for the Part D Low-Income Subsidy (LIS or Extra Help) if they meet the income and asset eligibility requirements. There are no additional immigration status or residency length requirements for the low-income subsidy beyond what is needed for Part A and Part B eligibility.
The Medicare Savings Programs (e.g., QMB, SLMB) that relieve low-income individuals from Medicare premiums, and in some cases cost-sharing, are administered by state Medicaid programs. Therefore, to be eligible for these programs or for full Medicaid coverage, older immigrants must meet Medicaid immigration status and length of residency requirements. These restrictions mean that in most states, a Medicare-eligible individual with temporary protected status cannot get help from Medicaid with Part B premiums or cost-sharing, and that others may have to wait five years to be eligible for this Medicaid assistance.
A Chilling Challenge
The “public charge” test, which has been part of federal immigration law for decades, was designed to identify people who may depend on government benefits as their main source of support. If immigration officials determine someone is likely to become a “public charge,” the government can deny that person admission to the U.S. or refuse an application for lawful permanent residency (green card). Under current rules, the only benefits considered in determining who is likely to become a “public charge” are government-funded institutional long-term care (including through Medicaid) and cash assistance, such as SSI, TANF and comparable state and local programs.
Under the Trump administration’s proposed rule, a “public charge” is defined as an immigrant who receives one or more public benefits, including not only the benefits already considered but also any type of Medicaid (except for emergency Medicaid), the Medicare Part D Low-Income Subsidy, SNAP, and housing programs. The proposal also changes how immigration officials would weigh a person’s age, health, financial resources, and skills in deciding whether a person is likely to use certain public benefits in the future.
It specifies certain circumstances that would weigh in favor of being determined likely to become a public charge, including being age 62 or older, having limited English proficiency, having income below 135 percent of the federal poverty level, and having physical or mental conditions that interfere with the person’s ability to care for themselves.
The proposed changes to public charge are already chilling participation in many programs due to the threat —both real and perceived—that seeking benefits could result in being denied a change in immigration status or entry into the U.S. It is critical for advocates working with older adults in immigrant families to know that these changes will not apply to benefits received before the rule takes effect. Before an immigrant decides to stop receiving benefits, he or she should talk to an immigration expert about the specific situation.
Tips for Advocates
- Certain limited public benefits are available to all immigrants, regardless of immigration status, who meet the program’s income and other eligibility requirements. These include emergency Medicaid coverage for limited services necessary for the treatment of an emergency medical condition; public health programs providing immunizations or treatment of communicable disease symptoms; short-term noncash emergency disaster assistance; and in-kind services to protect life/safety such as adult protective services, meals-on-wheels, shelters, disability or substance abuse services.
- “Lawfully present” immigrants are eligible to enroll in Affordable Care Act Marketplace (HealthCare.gov) coverage and may also qualify for federal financial assistance in the form of premium tax credits and cost-sharing reductions. There are no length of residency requirements to be eligible for coverage or for premium tax credits and cost-sharing reductions. Further, lawfully present individuals who are ineligible for Medicaid because of their immigration status can receive federal financial assistance if their income is between 0 and 400 percent of federal poverty level. (The 2019 level for a family of four in the 48 contiguous states is $25,750).
- It is important to consult an immigration attorney to ensure understanding of what an individual’s application for and receipt of benefits means for that person and his or her family. The National Immigration Legal Services Directory lists free or low-cost options.
- “Mixed Status” families: Oftentimes, a family or household includes both citizens and non-citizens. For example, non-citizen seniors may be living with their citizen children and/or grandchildren. While eligibility for most public benefits is tied to the individual applicant, in some cases the immigration status of other members of the applicant’s household may implicate eligibility or the amount the benefit.
- Public Charge: The changes to the public charge rule are not final and will not apply to benefits received before the rule takes effect. Moreover, these changes will not directly affect most individuals who already have their green cards as the public charge test is not a factor when applying for citizenship. Public charge can be an issue for a legal permanent resident who leaves the country for more than six months. Therefore, immigrants should talk to an immigration lawyer or expert about their specific situation prior to disenrolling from any programs or making immigration/travel decisions.
Older immigrants are facing increasingly complex rules and circumstances that affect their eligibility for and willingness to enroll in programs that support their basic needs. Advocates play an important role in helping older immigrants navigate their own specific circumstances so that they get access to the programs they need.
Additional Resources & References:
- National Immigration Legal Services Directory, http://www.immigrationadvocates.org/nonprofit/legaldirectory/
- National Immigration Law Center, Overview of Immigrant Eligibility for Federal Programs: https://www.nilc.org/issues/economic-support/overview-immeligfedprograms/
- National Center on Law and Elder Rights, Access to Public Benefits for Older Immigrants, https://ncler.acl.gov/getattachment/Legal-Training/Benefits-for-Immigrants-Ch-Summary-(1).pdf.aspx?lang=en-US
- Justice in Aging, Older Immigrants and Medicare, https://www.justiceinaging.org/wpcontent/uploads/2019/04/FINAL_Older-Immigrants-and-Medicare.pdf
- National Immigration Law Center, Medical Assistance Programs for Immigrants in Various States: https://www.nilc.org/wp-content/uploads/2015/11/med-services-for-imms-in-states.pdf
- Justice in Aging, Public Charge: A Threat to the Health & Well-being of Older Adults in Immigrant Families,Justice in Aging, Public Charge: A Threat to the Health & Well-being of Older Adults in Immigrant Families.
- Protecting Immigrant Families Campaign, Public Charge: Keep Getting The Help You Need, https://protectingimmigrantfamilies.org/wp-content/uploads/2019/05/Keep-Getting-the-Help-You-NeedEnglish.pdf
- Ctr. on Budget & Policy Priorities, “Key Facts: Immigrant Eligibility for Health Insurance Affordability Programs,” (2015), www.healthreformbeyondthebasics.org/key-facts-immigrant-eligibility-forcoverage-programs/.
- 8 U.S. Code §§ 1601 et. seq.; 8 U.S.C. § 1641(b) (listing qualified statuses)
Program Operations Manual System (POMS):
SI 00502.000-00502.550 SSI Alien Eligibility: https://secure.ssa.gov/apps10/poms.nsf/lnx/0500502000
- HI 00801 Hospital Insurance Entitlement: https://secure.ssa.gov/apps10/poms.nsf/subchapterlist!
- openview&restricttocategory=0600 8
8 C.F.R. § 1.3.
- CMS, “Eligibility for Non-Citizens in Medicaid and CHIP”,https://search.usa.gov/search?affiliate=medicaid&query=Eligibility%20for%20Non-Citizens%20in%20Medicaid%20and%20CHIP&commit=Search
- HealthCare.gov, https://www.healthcare.gov/immigrants/lawfully-present-immigrants/