Many questions arise when a lawful permanent resident or U.S. citizen considers sponsoring an elderly relative, for instance a mother-in-law who resides overseas.
In general, each sponsor must complete and sign an affidavit of support, which is a contract between the sponsor and the government in which the sponsor promises to reimburse the government for certain government “means-tested” benefits (i.e., benefits based on income) received by the sponsored immigrant.
The affidavit of support is a legally enforceable contract that either the immigrant or the U.S. government can enforce against the sponsor for reimbursement of any means-tested benefit (such as Medicaid), but not later than 10 years after the immigrant last received the benefit.
Current Immigration Service policy regarding federal “means-tested” benefits can be found in the Foreign Affairs Manual, the Federal Register, and the websites for USCIS, HHS, and SSA.
Here are some of the frequently-asked questions that would arise a scenario in which an elderly mother-in-law would be the beneficiary:
- How long after my mother-in-law gets her green card will it take for her to get Medi-Cal or Medicare?
- If she needs hospitalization or very expensive medical care, will my/my wife be responsible for the fees? Will they be able to go after our assets or salaries?
- Will she qualify for any social security or other financial help from the government?
Regarding Medi-Cal, Medicare, and Medicaid here are the general rules:
The Medi-Cal Aged & Disabled Federal Poverty Level program requires that the elderly participant be over 65 years of age and have less than $2,000 in assets. This is a federal “means-tested” benefit because it depends in part on the income of the participant. There is also SSI-linked Medi-Cal for people with low income who are aged, blind, or disabled.
Medicare is a federal program that is not “means-tested.”
In general, all persons 65 or older who have been legal residents of the U.S. for at least 5 years are eligible for Medicare. A person is eligible for Medicare if he/she or his/her spouse also worked for at least 10 years in Medicare-covered employment, and is a citizen or permanent resident of the United States. If the person is not yet 65, he/she might also qualify for coverage if he/she has a disability or with End-Stage Renal disease (permanent kidney failure requiring dialysis or transplant). However, since in most cases the elderly immigrant has never paid Medicare taxes for a minimum of 10 years and has not been a legal resident of the U.S. for at least 5 years, then he/she must pay the monthly premiums in order to be enrolled in Medicare.
There are some narrow exceptions to this general rule.
Regarding Medicaid, there is a five-year ban on Medicaid benefits, so the elderly immigrant would not be eligible for Medicaid for the first 5 years he or she will be in the U.S. In general, the sponsor is responsible for reimbursement of "Federal means-tested benefits", which include Medicaid, welfare, and food stamps. Of the three, Medicaid is the benefit that is most applicable in the case of the elderly immigrant, because it is a low-income benefit that is used to pay for nursing homes for the elderly poor (unlike Medicare, which is not based on income, and is a health insurance program for the elderly).
Current Immigration policy is that Medicaid has to be reimbursed by the sponsor to the state or federal government, since the new affidavit of support covers both federal and state benefits.
To summarize the above threshold points:
1. There are both federal and state benefits for the elderly and for the poor. Basically, “means-tested” benefits refers to benefits based on income. In general, the agency granting these benefits has the right to seek reimbursement from the sponsor of the immigrant who obtains these benefits (whether state or federal).
2. Regarding eligibility, there is a 5-year bar on certain federal benefits. This may not be the case for state and local programs. Therefore, the elderly immigrant could probably apply for any state and local programs at once, should their rules allow.
3. Key issues involve (1) eligibility, (2) reimbursement, and (3) inadmissibility as a “public charge”.
I Eligibility
The issue of eligibility for federal and state programs depends on the individual program. It is advisable to check with the city and county to see what they offer, and what their requirements are. Be sure to ascertain whether the program considers itself to be “means-tested”, and whether their policy is to seek reimbursement.
II Reimbursement
Title 8, Chapter 12, Section 1183a of the U.S. Code is the federal law that sets out the requirement that a sponsor reimburse the means-tested benefits received by the immigrant. It states:
“Upon notification that a sponsored alien has received any means-tested public benefit, the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefit.”
The period of enforceability is either (a) the date of naturalization of the immigrant, (b) after such time as the immigrant has worked 40 qualifying quarters, or (c) death of the immigrant, plus other qualifying factors.
In order for the agency supplying the means-tested benefit to claim reimbursement from the sponsor, the agency must have designated the program as such prior to the sponsor’s submission of the Affidavit of Support (form I-864), and the agency must actually request reimbursement from the sponsor.
The Foreign Affairs manual leaves it up to the aid agencies to decide whether or not to designate itself as a means-tested program, and whether or not to seek reimbursement from the sponsor. HHS and SSA and confirm in the Federal Register that there are means-tested benefits administered by these agencies for which they can seek reimbursement (e.g., long-term Medicaid).
III Exclusion from U.S. as a “Public Charge”
According to the Immigration and Nationality Act, an alien may be denied admission to the US if the U.S. government (e.g., the U.S. consulate/embassy abroad) believes he/she is likely to become a “public charge” (i.e., “primarily dependent on the U.S. government for subsistence”). If the elderly immigrant is likely to be receiving public cash assistance for income maintenance or to be institutionalized for long-term care at U.S. government expense, he/she will be denied a visa to come to the U.S. If the elderly immigrant has not received assistance in the U.S. in the past, it is up to the reviewing officer to determine if, under the totality of the circumstances, the elderly immigrant may become a public charge.
In summary: U.S. policy does not favor the elderly or the ailing, even when they are citizens, let alone immigrants.
About the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
Saturday, October 13, 2012
GOOD NEWS FOR IMMIGRATING CHILDREN OVER AGE 21
The Child Status Protection Act was enacted into law in 2002. Its purpose was to allow the children of immigrants who turned 21 while waiting for their visas to be processed to immigrate with their parents in many cases.
The courts have recently dealt with the issue of “automatic conversion”, which would allow the adult children of immigrants to use the same “priority date” as their parents.
“Priority date” refers to how long the green card application has been pending. For instance, if a petition was filed in January of 2001, then January 2001 is the “priority date”. Here is how “automatic conversion” to the child’s parent’s “priority date” would work:
Let’s say Mr. Smith is a U.S. citizen or lawful permanent resident. His sister lives overseas with her husband and a daughter. Mr. Smith is sponsoring his sister (Mrs. Jones), his sister’s husband (Mr. Jones), and his niece (Miss Jones). The niece was under 21 at the time Mr. Smith filed for his sister and her family. However, now that a visa is finally available for her parents, Miss Smith is over 21 years old. Under the old rule, Miss Smith would not have been able to immigrate with her parents. She would have to wait overseas while her parents petitioned for her in the U.S., which would take several years. Under the old rule, only the spouses and children under 21 could immigrate along with their sponsored relative. Relatives of a sponsored immigrant are referred to as “derivatives.” A “derivative” over age 21 was usually left behind when his or her parents immigrated to the U.S. Now, under the new rule that was created by court’s decision, Miss Jones can immigrate to the U.S. with her parents because she could be given credit for all the years that she waited with her parents for her green card.
In the recent case of De Osorio v. Mayorkas, the 9th Circuit Court expressed its hope that the U.S. Immigration Service would develop a procedure to deal with the “automatic conversion” of child immigrants who turn 21, so that these children may share in their parents’ “priority date” and immigrate with their parents. This would ensure that children are not penalized for the Immigration Service’s slow processing times. However, the Immigration Service may decide instead to appeal the De Osorio decision to the U.S. Supreme Court, which would delay any implementation of the automatic conversion for as long as it would take the U.S. Supreme Court to make its decision. The U.S. Supreme Court does not accept for consideration all the cases that are appealed to it. It can select the cases it wishes to decide. Also, there is only a limited time in which the Immigration Service can petition the U.S. Supreme Court to hear its appeal of the De Osorio case, and others like it from other jurisdictions. With luck, the U.S. Supreme Court will decline to hear the Immigration Service’s appeal, or the Immigration Service will not appeal at all. In either of these scenarios, the Immigration Service will be obligated to develop a process in a timely manner to implement the “automatic conversation” of “priority dates” so that recent immigrants to the U.S. may finally be reunited with their children.
About the author: Kathleen Lord-Black is a U.S. Immigration Lawyer. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
“Priority date” refers to how long the green card application has been pending. For instance, if a petition was filed in January of 2001, then January 2001 is the “priority date”. Here is how “automatic conversion” to the child’s parent’s “priority date” would work:
Let’s say Mr. Smith is a U.S. citizen or lawful permanent resident. His sister lives overseas with her husband and a daughter. Mr. Smith is sponsoring his sister (Mrs. Jones), his sister’s husband (Mr. Jones), and his niece (Miss Jones). The niece was under 21 at the time Mr. Smith filed for his sister and her family. However, now that a visa is finally available for her parents, Miss Smith is over 21 years old. Under the old rule, Miss Smith would not have been able to immigrate with her parents. She would have to wait overseas while her parents petitioned for her in the U.S., which would take several years. Under the old rule, only the spouses and children under 21 could immigrate along with their sponsored relative. Relatives of a sponsored immigrant are referred to as “derivatives.” A “derivative” over age 21 was usually left behind when his or her parents immigrated to the U.S. Now, under the new rule that was created by court’s decision, Miss Jones can immigrate to the U.S. with her parents because she could be given credit for all the years that she waited with her parents for her green card.
In the recent case of De Osorio v. Mayorkas, the 9th Circuit Court expressed its hope that the U.S. Immigration Service would develop a procedure to deal with the “automatic conversion” of child immigrants who turn 21, so that these children may share in their parents’ “priority date” and immigrate with their parents. This would ensure that children are not penalized for the Immigration Service’s slow processing times. However, the Immigration Service may decide instead to appeal the De Osorio decision to the U.S. Supreme Court, which would delay any implementation of the automatic conversion for as long as it would take the U.S. Supreme Court to make its decision. The U.S. Supreme Court does not accept for consideration all the cases that are appealed to it. It can select the cases it wishes to decide. Also, there is only a limited time in which the Immigration Service can petition the U.S. Supreme Court to hear its appeal of the De Osorio case, and others like it from other jurisdictions. With luck, the U.S. Supreme Court will decline to hear the Immigration Service’s appeal, or the Immigration Service will not appeal at all. In either of these scenarios, the Immigration Service will be obligated to develop a process in a timely manner to implement the “automatic conversation” of “priority dates” so that recent immigrants to the U.S. may finally be reunited with their children.
About the author: Kathleen Lord-Black is a U.S. Immigration Lawyer. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
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