Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Congressional research reportApr 20, 2010
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Noncitizen Eligibility and Verification Issues
in the Health Care Reform Legislation
/name redacted/
Specialist in Immigration Policy
April 20, 2010
Congressional Research Service
7-....
www.crs.gov
R40889
CRS Report for Congress
Prepared for Members and Committees of Congress
Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Summary
Health care reform legislation raises a significant set of complex issues, and among the thornier
for policy makers are the noncitizen eligibility and verification issues. That the treatment of
foreign nationals complicates health care reform legislation is not surprising given that reform of
immigration policy poses its own constellation of controversial policy options. This report
focuses on this nexus of immigration law and health care reform in the major health care reform
bills that are receiving action. These are the America’s Affordable Health Choices Act of 2009
(H.R. 3200), as reported by the House Committees on Energy and Commerce, Ways and Means,
and Education and Labor on October 14, 2009, and folded into the Affordable Health Care for
America Act (H.R. 3962), which passed on November 7, 2009; the Affordable Health Choices
Act (S. 1679), as reported by the Senate Committee on Health, Education, Labor, and Pensions
(HELP) on September 17, 2009; the America’s Healthy Future Act (S. 1796), as ordered reported
by the Senate Committee on Finance on October 13, 2009; and the Patient Protection and
Affordable Care Act (H.R. 3590 as amended), which passed the Senate on December 24, 2009.
Legal permanent residents (LPRs) are treated similarly to U.S. citizens under all the major health
care reform bills. They are mandated to obtain health insurance, are eligible to purchase insurance
through the exchange, and are eligible for the premium and cost-sharing subsidies if they meet the
other eligibility requirements. This consistency of treatment holds regardless of when they
entered the United States or whether they came initially as refugees or asylees.
The proposed policies toward nonimmigrants (i.e., those in the United States temporarily, such as
students and temporary workers) are more nuanced in large part because some classes of
nonimmigrants reside legally in the United States for extended periods of time, some are
employed and taxed as a result of those earnings, and some are on a track to become LPRs.
The treatment of unauthorized aliens varies across bills and across the three elements (the
individual mandate, eligibility for the exchange, and eligibility for subsidies). Unauthorized aliens
would not be eligible for the premium and cost-sharing credits in any of the bills. The Senatepassed H.R. 3590 and the Senate Finance bill expressly exempt them from the mandate to have
health coverage and bar them from the health insurance exchange.
Another aspect of the legislation germane to the issue of noncitizens is the immigration and
citizenship verification provisions of the bills. Under Senate-passed H.R. 3590, three pieces of
personal data would be used to verify citizenship and immigration status. The Social Security
Administration would verify the name, social security number, and date of birth of the individual,
and the Department of Homeland Security (DHS) would verify an individual’s immigration
status. While the Senate-passed H.R. 3590 has requirements similar to and compatible with the
DHS Systematic Alien Verification for Entitlements (SAVE) system established by §1137(d) of
the Social Security Act (SSA), H.R. 3962 would expressly build on the statutory authority of the
SAVE system to verify citizenship and immigration status.
None of the major health care reform bills would alter the noncitizen eligibility laws pertaining to
Medicaid or CHIP. Moreover, none of the major health care reform bills would alter the Internal
Revenue Code on the definitions of resident or nonresident aliens.
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Contents
Epilogue .....................................................................................................................................1
Policy Context ............................................................................................................................1
Legislative Analysis ....................................................................................................................2
Key Elements of the Legislation............................................................................................2
Comparative Analysis of Key Elements.................................................................................3
Selected Policy Implications of the Proposals ..............................................................................5
What Types of Health Coverage Do Noncitizens Currently Have?.........................................5
Noncitizens: Coverage and Poverty Levels......................................................................6
Immigration Status: Coverage and Poverty Levels...........................................................8
Eligibility for New Provisions in Major Health Care Reform Bills................................. 11
What Is Current Law on Noncitizen Eligibility for Federal Means-Tested Health
Care? ............................................................................................................................... 13
Eligibility for Existing Federal Means-Tested Health Care Coverage in Major
Health Care Reform Bills ........................................................................................... 14
What are the Current Employment Rules for and Tax Obligations of Noncitizens? .............. 14
Obligations and Eligibility for Existing Federal Tax Provisions in Major Health
Care Reform Bills ...................................................................................................... 15
How Is Immigration and Citizenship Status Verified? .......................................................... 15
Documents Used to Establish Immigration and Citizenship Status................................. 16
Databases Used to Verify Immigration and Citizenship Status ....................................... 17
Verification Provisions in Major Health Care Reform Bills............................................ 19
Closing Observations ................................................................................................................ 20
Figures
Figure 1. Noncitizens, by Type of Health Insurance Coverage, 2007............................................7
Figure 2. Citizenship Status and Noncitizen Poverty Levels, 2008 ...............................................8
Figure 3. Imputed Immigration Status for Noncitizens, 2008 .......................................................9
Figure 4. Individuals Without Health Insurance, by Imputed Immigration Status, 2007.............. 10
Tables
Table 1. Mandate for Noncitizens to Obtain Health Insurance......................................................3
Table 2. Access of Noncitizens to Health Insurance Exchanges....................................................4
Table 3. Eligibility of Noncitizens for Health Insurance Premium Subsidies Available to
Low to Moderate Income Individuals Enrolled in Exchange Coverage .....................................5
Table A-1. Classes of Noncitizens and Their Eligibility to Obtain Social Security
Numbers, to Qualify as a Resident Alien, and to Receive Medicaid ........................................ 22
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Appendixes
Appendix A. Classes of Noncitizens and Their Eligibility to Obtain Social Security
Numbers, to Qualify as a Resident Alien, and to Receive Medicaid ........................................ 22
Appendix B. Deeming and Sponsorship .................................................................................... 25
Appendix C. Selected Categories of Non-LPR Aliens Who Are Permitted to Work .................... 27
Appendix D. Major Immigration Documents That Foreign-Born Persons in the United
States May Use to Establish Identity and/or Legal Immigration Status.................................... 28
Contacts
Author Contact Information ...................................................................................................... 28
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Epilogue
The Patient Protection and Affordable Care Act (P.L. 111-148, PPACA) was signed into law on
March 23, 2010. On March 30, 2010, PPACA was amended by P.L. 111-152, the Health Care and
Education Reconciliation Act of 2010.1 In terms of the noncitizen eligibility and verification
provisions, the PPACA mirrors the Senate-passed legislation (H.R. 3590) discussed below.2 This
report was completed on January 8, 2010.
Policy Context
Health care reform legislation raises a significant set of complex issues, and among the thornier
for policy makers are the noncitizen eligibility and verification issues. That the treatment of
foreign nationals complicates health care reform legislation is not surprising given that reform of
immigration policy poses its own constellation of controversial policy options. This report
focuses on this nexus of immigration law and health care reform in the major health care reform
bills that have received committee or floor action. 3 These are the America’s Affordable Health
Choices Act of 2009 (H.R. 3200), as reported by the House Committees on Energy and
Commerce, Ways and Means, and Education and Labor on October 14, 2009,4 and folded into the
Affordable Health Care for America Act (H.R. 3962), which passed on November 7, 2009; the
Affordable Health Choices Act (S. 1679), as reported by the Senate Committee on Health,
Education, Labor, and Pensions (HELP) on September 17, 2009; the America’s Healthy Future
Act (S. 1796), as reported by the Senate Committee on Finance on October 19, 2009; and the
Patient Protection and Affordable Care Act (H.R. 3590 as amended), which passed the Senate on
December 24, 2009.5
A noncitizen is anyone who is not a citizen or national of the United States and is synonymous
with the terms alien and foreign national. Noncitizens include those in the United States
permanently (e.g., legal permanent residents, refugees), those in the country temporarily (e.g.,
students, temporary workers), and those who are in the country without authorization.6 The
1
For a more complete discussion of the PPACA, see CRS Report R40942, Private Health Insurance Provisions in
PPACA (P.L. 111-148) , by (name redacted) et al., and CRS Report R41137, Health Insurance Premium Credits Under
PPACA (P.L. 111-148), by (name redacted) and (name redacted).
2
(name redacted), Specialist in Immigrant Policy, is the lead CRS analyst handling the noncitizen eligibility for health
care in PPACA. She can be reached at 7-.... or [redacted]@crs.loc.gov.
3
For a discussion of the treatment of noncitizens in the Republican alternative offered by House Minority Leader John
Boenher, see CRS Report R40906, Overview of Provisions in the Amendment in the Nature of a Substitute to H.R. 3962
Offered by Mr. Boehner of Ohio, coordinated by (name redacted), (name redacted), and (name redacted).
4
For a more complete analysis of these provisions in H.R. 3200, see CRS Report R40773, Treatment of Noncitizens in
H.R. 3200, by (name redacted) and (name redacted).
5
For a full side-by-side analysis of H.R. 3962 as passed by the House and H.R. 3590 as passed by the Senate, see CRS
Report R40981, A Comparative Analysis of Private Health Insurance Provisions of H.R. 3962 and Senate-Passed H.R.
3590, coordinated by (name redacted).
6
The three main components of the unauthorized resident alien population are (1) aliens who overstay their
nonimmigrant visas, (2) aliens who enter the country surreptitiously without inspection, and (3) aliens who are admitted
on the basis of fraudulent documents.
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Immigration and Nationality Act (INA) defines and proscribes who among the noncitizens are
legally present in the United States.7
According to the March 2009 Current Population Survey (CPS), an estimated 21.3 million
noncitizens were 7.1% of the U.S. population.8 Of those, an estimated 23.4% of noncitizens were
below the 100% threshold of the federal poverty level in 2008. An earlier Congressional Research
Service (CRS) study found that 43.8% of noncitizens lacked any type of health insurance in
2007.9 Researchers at the Pew Hispanic Center estimated that 24% of legal immigrants who were
adults had no health insurance coverage and that 59% of unauthorized aliens who were adults had
no health insurance in 2007.10
The report opens with a legislative analysis that summarizes the key elements of the major health
care reform legislation in which noncitizen eligibility issues are especially germane. It follows
with a comparative analysis of how the bills treat the main classes of noncitizens on the three key
elements. The report then addresses four questions selected for their policy implications: What
type of health coverage do noncitizens currently have? What is current law on noncitizen
eligibility for federal means-tested health care coverage? What are the current employment rules
for and tax obligations of noncitizens? How is immigration and citizenship status verified? This
report builds on a set of CRS reports that analyze the tax obligations of noncitizens, noncitizen
eligibility for federal benefits, trends in noncitizen poverty levels, and noncitizen health insurance
coverage and use of select safety net providers.11
Legislative Analysis
Key Elements of the Legislation
Health care reform legislation in the 111th Congress has many important features, but three
elements common to the major health care reform bills bear directly on how noncitizens are
treated.12 These key elements are as follows:
•
an individual mandate to have health insurance,
•
a health insurance exchange (to provide eligible individuals and small businesses
with access to insurers’ plans), and
7
8 U.S.C. §1101 et seq.
For a discussion of the CPS, see section below on “What Types of Health Coverage Do Noncitizens Currently Have?”
9
For the complete analysis, see CRS Report R40772, Noncitizen Health Insurance Coverage and Use of Select SafetyNet Providers, by (name redacted).
10
Jeffrey S. Passel and D'Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, Pew Hispanic
Eligibility in Major Health Care Reform Bills Center, April 14, 2009.
11
CRS Report IS40257, CRS Issue Statement on Aliens’ Rights, Benefits, and Responsibilities, coordinated by
(name redacted).
12
For a full discussion of health care reform legislation in the 111th Congress, see CRS Report R40581, Health Reform
and the 111th Congress, by (name redacted); CRS Report R40517, Health Care Reform: An Introduction, coordinated
by (name redacted); and CRS Report R40885,
Private Health Insurance Provisions of H.R. 3962, by (name
redacted) et al.
8
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•
premium and cost-sharing subsidies based on income toward the required
purchase of health insurance.
Whether and which noncitizens in the United States are eligible for these three elements have
become contentious and perhaps misunderstood.
Comparative Analysis of Key Elements
As the three tables below indicate, legal permanent residents (LPRs) are treated similarly to U.S.
citizens under the major health care reform bills. They are mandated to purchase health insurance,
are eligible to purchase insurance through the exchange, and are eligible for the premium and
cost-sharing subsidies if they meet the other eligibility requirements. This consistency of
treatment holds regardless of when they entered the United States or whether they came initially
as refugees or asylees.
The treatment of unauthorized aliens varies across bills and across the three elements.13 For
example, H.R. 3962 would mandate that as of 2013, all resident aliens (as defined in the Internal
Revenue Code and discussed below) have health insurance, but would expressly bar those
resident aliens who are not in a legal immigration status (i.e., unauthorized or “illegal” aliens)
from eligibility for the premium and cost-sharing credit.14 The Senate Leadership Substitute to
H.R. 3590 and the Senate Finance bill expressly exempt unauthorized aliens from the mandate to
have health coverage and bar them from the health insurance exchange. Moreover, they would
not be not eligible for the premium and cost-sharing credit in any of the major health care reform
bills. This language is preserved in the H.R. 3590 as passed by the Senate.
The proposed policies toward nonimmigrants (those admitted temporarily for a limited purposes,
such as students, visitors, or temporary workers) are more nuanced, in large part because some
classes of nonimmigrants reside legally in the United States for extended periods of time, some
are employed and taxed as a result of those earnings, and some are on a track to become LPRs.
Table 1. Mandate for Noncitizens to Obtain Health Insurance
Legislation Receiving Action
Class of
Noncitizen
Legal Permanent
Residents (LPRs)
—first five years
in the United
States
—after five years
in the United
States
House-passed
H.R. 3962
Senate HELP
Reported (S.
1679)
Senate-passed
H.R. 3590
Senate Finance
Reported (S. 1796)
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
13
Unauthorized (“illegal”) aliens are those in the United States in violation of immigration law for whom no legal relief
or recognition has been extended.
14
Section 347 of H.R. 3962 states, “Nothing in this subtitle shall allow Federal payments for affordability credits on
behalf of individuals who are not lawfully present in the United States.” See CRS Report R40773, Treatment of
Noncitizens in H.R. 3200, by (name redacted) and (name redacted).
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Class of
Noncitizen
—refugees,
humanitarian and
other excepted
classes of LPRs
Nonimmigrants
Unauthorized
aliens
House-passed
H.R. 3962
Yes
Yes, if they meet
the substantial
presence test
Yes, if they meet
the substantial
presence test
Senate HELP
Reported (S.
1679)
Yes
Senate-passed
H.R. 3590
Senate Finance
Reported (S. 1796)
Yes
Yes
Not expressly
exempted
Yes
Yes
Not expressly
exempted
Expressly exempted
Expressly exempted
Source: CRS analyses of H.R. 3962 as passed by the House, S. 1679 as reported, S. 1796 as reported, and H.R.
3590 as amended and passed by the Senate.
Notes: The substantial presence test is met when the individual is present in the United States for at least 31
days during the current year and at least 183 days during the current year and previous two years. For
computing the 183 days, a formula is used that counts all the qualifying days in the current year, one-third of the
qualifying days in the immediate preceding year, and one-sixth of the qualifying days in the second preceding year.
I.R.C. §§ 7701(b)(1)(A) and (b)(3).
Table 2. Access of Noncitizens to Health Insurance Exchanges
Legislation Receiving Action
Senate-passed
Senate HELP
Reported (S.
1679)
Senate Finance
Reported (S. 1796)
H.R. 3590
Eligible to
purchase
Eligible to
purchase
Eligible to
purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Eligible to purchase
Nonimmigrants
Not expressly
barred from
purchasing
Not expressly
barred from
purchasing
Eligible to purchase
Eligible to purchase
Unauthorized aliens
Not expressly
barred from
purchasing
Not expressly
barred from
purchasing
Expressly barred from
purchasing
Expressly barred from
purchasing
Class of
Noncitizen
Legal Permanent
Residents (LPRs)
—first five years in
the United States
—after five years in
the United States
—refugees,
humanitarian and
other excepted
classes of LPRs
House-passed
H.R. 3962
Source: CRS analyses of H.R. 3962 as passed by the House, S. 1679 as reported, S. 1796 as reported, and H.R.
3590 as amended and passed by the Senate.
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Table 3. Eligibility of Noncitizens for Health Insurance Premium Subsidies Available
to Low to Moderate Income Individuals Enrolled in Exchange Coverage
Legislation Receiving Action
Senate-passed
House-passed
H.R. 3962
Senate HELP
Reported (S.
1679)
Senate Finance
Reported (S. 1796)
H.R. 3590
—first five years in
the United States
Eligible if
otherwise eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
—after five years in
the United States
Eligible if
otherwise eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
—refugees,
humanitarian and
other excepted
classes of LPRs
Eligible if
otherwise eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
Nonimmigrants
Not eligible, with
certain exceptions
Eligible if otherwise
eligible
Eligible if otherwise
eligible
Eligible if otherwise
eligible
Unauthorized aliens
Not eligible
Not eligible
Not eligible
Not eligible
Class of
Noncitizen
Legal Permanent
Residents (LPRs)
Source: CRS analyses of H.R. 3962 as passed by the House, S. 1679 as reported, S. 1796 as reported, and H.R.
3590 as amended and passed by the Senate.
Notes: The exceptions for nonimmigrants who could obtain credits under H.R. 3962 would be those trafficking
victims, crime victims, fiancées of U.S. citizens, and certain V visaholders who have had applications for LPR
status pending for three years; these individuals are likely to remain in the United States permanently.
Selected Policy Implications of the Proposals
Among other features, the major health care reform bills have elements based upon employerprovided health insurance, federal means-tested health care, individually obtained health
coverage, and premium subsidies or cost sharing credits for low- and moderate-income people.
When these elements are seen through the prism of immigration and citizenship status, the policy
implications prompt at least four questions. What types of health coverage do noncitizens
currently have? What is current law on noncitizen eligibility for federal means-tested health care
coverage? What are the current employment rules for and tax obligations of noncitizens? How is
immigration and citizenship status verified? This section of the report addresses these questions
in light of the policy implications of the proposals and summarizes the germane legislative
provisions.
What Types of Health Coverage Do Noncitizens Currently Have?
One of the most comprehensive source of information on noncitizens is the U.S. Census Bureau’s
March Supplement to the Current Population Survey (CPS). The Census Bureau conducts the
CPS each month to collect labor force data about the civilian noninstitutionalized population. The
March Supplement of the CPS gathers additional data about income, education, household
characteristics, and geographic mobility. Because the CPS is a sample of the U.S. population, the
results are estimates. Additionally, while the CPS data distinguish between the foreign born who
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
have naturalized and those who have not, they do not distinguish between types of noncitizens
(e.g., permanent, temporary, illegal).
Noncitizens: Coverage and Poverty Levels
CRS recently published an extensive analysis of noncitizen health insurance coverage, which
used the 2008 March CPS. Among the study’s findings were that noncitizens were more than
three times as likely as native-born U.S. citizens, and more than two times as likely as naturalized
U.S. citizens, to be uninsured in 2007. It also found that 43.8% of noncitizens lacked any type of
health insurance, compared with 12.7% of native-born and 17.6% of naturalized populations.
Similarly, noncitizens had the lowest rate of private insurance coverage (42.5%), while nativeborn citizens had a slightly higher rate of private health insurance than naturalized citizens
(69.9% and 63.9%, respectively). The noncitizen population also had the lowest rate of Medicare
coverage in 2007, which was likely due to the relatively young age of noncitizens and the
decreased likelihood that they would meet the eligibility requirements for Medicare. Noncitizens
were slightly less likely to have Medicaid coverage (12.3%) than native-born citizens (13.4%),
while naturalized citizens were the least likely to have Medicaid coverage (10.7%). Lastly,
because noncitizens, in general, must be LPRs to join the armed forces, the noncitizen population
had much lower rates of military/veterans coverage (0.8%) than the naturalized (2.3%) and
native-born citizen (4%) populations in 2007.15 Figure 1 presents a summary of types of coverage
for noncitizens from this CRS analysis.16
15
The CPS interviews the civilian population, not active duty military.
For the complete analysis, see CRS Report R40772, Noncitizen Health Insurance Coverage and Use of Select SafetyNet Providers, by (name redacted).
16
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Figure 1. Noncitizens, by Type of Health Insurance Coverage, 2007
Private
40.7%
Medicare
4.9%
Medicaid
11.8%
Military/Veterans
0.8%
Uninsured
41.9%
Source: CRS analysis of the CPS March Supplement, 2008, from CRS Report R40772, Noncitizen Health
Insurance Coverage and Use of Select Safety-Net Providers, by (name redacted).
Using the March Supplement of the 2009 CPS, CRS estimated that in the beginning of 2009,
there were approximately 36.8 million foreign-born persons in the United States. The foreignborn population comprised approximately 15.5 million naturalized U.S. citizens and 21.3 million
noncitizens.17 As Figure 2 illustrates, noncitizens composed an estimated 7.1% of the U.S.
population at the beginning of 2009.
17
According to the CRS analysis, the 2009 CPS data show an increase in the number of foreign-born residents who
have naturalized, as well as flattening in the overall number of newly arriving foreign-born residents. For CRS analysis
of foreign born residents in the 2008 CPS, see CRS Report RL31114, Noncitizen Eligibility for Major Federal Public
Assistance Programs: Policies and Legislation, by (name redacted), and CRS Report R40772, Noncitizen Health
Insurance Coverage and Use of Select Safety-Net Providers, by (name redacted).
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Figure 2. Citizenship Status and Noncitizen Poverty Levels, 2008
Total Population by Citizenship Status
Naturalized
5.1%
Native
7.1%
87.8%
Noncitizens by Poverty Level
13.9%
> 500%
6.3%
10.0%
400-499%
300-399%
18.5%
200-299%
27.8%
100-199%
23.4%
< 100%
Noncitizens
301.5 million
21.3 million
Source: CRS analysis of the CPS March Supplement, 2009.
Notes: The population estimates are calculated as of January 2009, but the poverty data are based upon income
reported for 2008.
As Figure 2 shows, 23.4% of noncitizens are below the threshold of 100% of the federal poverty
level. Another 27.8% fall between 100% and 199% of the federal poverty level. Because the
health insurance premium subsidies available to low- to moderate-income individuals enrolled in
exchange coverage would likely be based on the federal poverty level, the portion of noncitizens
with low- or moderate-incomes is a factor. As Table 3 indicates, however, eligibility for the
subsidies is also based on immigration status, a piece of information not available in the CPS data
or any other surveys of the U.S. population.
Immigration Status: Coverage and Poverty Levels
To explore the immigration status of noncitizens, Jeffrey Passel and his co-author D’Vera Cohn of
the Pew Hispanic Center have published the most commonly cited estimates of the immigration
status of the noncitizen resident population, the most recent of which are based on the 2008
March CPS.18 Passel and Cohn imputed the number of LPRs, nonimmigrants, and unauthorized
18
For a full analysis of these data, see CRS Report RL33874, Unauthorized Aliens Residing in the United States:
Estimates Since 1986, by (name redacted).
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
aliens among an estimated 25.6 million noncitizen residents in 2008.19 As shown in Figure 3, the
researchers at the Pew Hispanic Center estimated that there were 11.9 million unauthorized
immigrants living in the United States in 2008.20
Figure 3. Imputed Immigration Status for Noncitizens, 2008
Legal Permanent
Residents (LPRs)
48.0%
Temporary
Nonimmigrants
5.5%
Unauthorized Aliens
46.5%
25.6 million
Source: CRS presentation of analysis of March 2008 CPS data conducted by Jeffrey Passel and D’Vera Cohn
(2009).
Notes: Percentages estimated using a residual methodology to impute immigration status and not actual reports
of immigration status.
Passel and Cohn analyzed health insurance coverage by imputed immigration status, the results of
which are depicted in Figure 4. They estimated that three-fourths of legal immigrants had health
insurance coverage. They found that most unauthorized aliens who were adults (59%) had no
health insurance in 2007, more than twice the uninsured share among legal immigrants who were
adults (24%) and four times the uninsured share among U.S.-born adults (14%). They estimated
that the children of unauthorized aliens were less likely than their parents to lack insurance, but
19
The researchers at the Pew Hispanic Center made adjustments in the population estimates for an assumed undercount
of noncitizens. The demographers who conducted these analyses use a residual methodology to estimate the population
(i.e., the estimated population remaining after citizens and authorized aliens are accounted for). Jeffrey S. Passel and
D'Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, Pew Hispanic Center, April 14, 2009.
20
The size of the unauthorized population appears to have declined from an estimated 12.1 million in 2007. Jeffrey S.
Passel and D'Vera Cohn, Trends in Unauthorized Immigration: Undocumented Inflow Now Trails Legal Inflow, Pew
Hispanic Center, October 2, 2008.
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
that their uninsured rate was higher than that of U.S.-born children. An estimated 45% of
unauthorized alien children whose parents are unauthorized aliens did not have health insurance,
according to Passel and Cohn. One-quarter of U.S.-born children of unauthorized aliens were
uninsured.21
Figure 4. Individuals Without Health Insurance, by Imputed Immigration Status,
2007
Adults
Children
14%
Native born
8%
Citizen children of
legal immigrants
14%
24%
Legal immigrants
22%
59%
Unauthorized aliens
45%
Citizen children of
unauthorized
aliens
25%
0%
20%
40%
60%
80%
100%
Source: CRS presentation of analysis of March 2008 CPS data conducted by Jeffrey Passel and D’Vera Cohn
(2009).
Notes: Percentages estimated using a residual methodology to impute immigration status and not actual reports
of immigration status.
Passel and Cohn further drew on the March 2008 CPS to estimate poverty levels according to
imputed immigration status, and offered this analysis:
Poverty rates are much higher among unauthorized immigrants than for either U.S.-born or
legal immigrant residents. Among adults who are unauthorized immigrants, one-in-five
(21%) is poor. In contrast, the poverty rate is 13% for legal immigrant adults and 10% for
U.S.-born adults.... Unauthorized immigrants are notably overrepresented in the poverty
population. Undocumented immigrants and their U.S.-born children account for 11% of
21
The population estimates are calculated as of January 2008, but the health coverage data are based upon data for
2007. Jeffrey S. Passel and D'Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, Pew Hispanic
Eligibility in Major Health Care Reform Bills Center, April 14, 2009, p. 18.
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people with incomes below the poverty level. This is twice their representation in the total
population (5.5%).22
Passel and Cohn’s analysis indicating that unauthorized aliens make up a disproportionate share
of noncitizens who are in poverty and of noncitizens who lack health insurance coverage poses
policy implications for health care reform. Those households headed by unauthorized individuals
who have U.S. citizen children, as well as spouses who may be LPRs or unauthorized aliens,
referred to as mixed-immigration status families, further complicate the issue, as discussed
below.23
Eligibility for New Provisions in Major Health Care Reform Bills
As noted in Tables 1, 2 and 3 above, LPRs would be treated similarly to U.S. citizens in the
major health care reform bills. Beginning in 2013, S. 1796 would require all U.S. citizens, legal
permanent residents, and all other aliens lawfully present to purchase coverage through (1) the
individual market through a public program such as Medicare, Medicaid, the Children‘s Health
Insurance Program, Veteran’s Health Care Program, or through an employer (or as a dependent of
a covered employee) in the small group market, or (2) in the large group market. It expressly
limits access to the health insurance exchange to “a citizen or national of the United States, an
alien lawfully admitted to the United States for permanent residence, or an alien lawfully present
in the United States.”24
S. 1796 further states that “an individual is disqualified from participation in the exchange or
from receiving any premium credit or cost-sharing subsidy because the individual is not, or is not
reasonably expected to be for the entire plan year for which enrollment is sought, a citizen or
national of the United States, an alien lawfully admitted to the United States for permanent
residence, or an alien lawfully present in the United States.”25 Similarly, §163 of S. 1679 would
amend title XXXI of the Public Health Service Act to create §3116, which would limit eligibility
for the premium credit through the health exchange to citizens or nationals of the United States or
to “an alien lawfully admitted to the United States for permanent residence or an alien lawfully
present in the United States.” 26
The Senate-passed H.R. 3590 is most similar to S. 1796 in its treatment of noncitizens. Beginning
in 2014, it would mandate that all citizens, nationals, and individuals who are lawfully present
obtain health insurance.27 It would limit access to the exchange to individuals who are citizens or
nationals of the United States or are lawfully present in the United States. More specifically, it
states
22
Jeffrey S. Passel and D'Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, Pew Hispanic
Eligibility in Major Health Care Reform Bills Center, April 14, 2009, p.17.
23
For further discussion and population estimates for mixed status families, see CRS Report RL34500, Unauthorized
Aliens’ Access to Federal Benefits: Policy and Issues, by (name redacted), pp. 2-3.
24
Section 2232(c) of S. 1796 as reported by the Senate Committee on Finance.
25
Section 2236 of S. 1796 as reported by the Senate Committee on Finance.
26
For analysis of the provisions in S. 1679, see CRS Report R40861, Private Health Insurance Provisions of S. 1679,
by (name redacted) et al.
27
Section 1501(b) of the Patient Protection and Affordable Care Act, an amendment in the nature of a substitute to
H.R. 3590, as proposed in the Senate on November 18, 2009.
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If an individual is not, or is not reasonably expected to be for the entire period for which
enrollment is sought, a citizen or national of the United States or an alien lawfully present in
the United States, the individual shall not be treated as a qualified individual and may not be
covered under a qualified health plan in the individual market that is offered through an
Exchange.28
H.R. 3962 would exempt nonresident aliens from the individual mandate to obtain health
insurance; however, H.R. 3962 would require all noncitizens who meet the Internal Revenue
Code definition of resident alien (i.e., nonimmigrants, and unauthorized aliens who meet the
substantial presence test) to obtain health insurance. The House bill contains no express
restrictions on noncitzens—whether legally or illegally present, or in the United States
temporarily or permanently—accessing and paying for coverage available through the health
insurance exchange. As noted above, unauthorized aliens would be barred from the health
insurance exchange in S. 1796 and the Senate-passed H.R. 3590.
The Senate-passed H.R. 3590 would limit the temporary “high risk” pools that the bill would
establish to citizens and individuals lawfully present. 29 H.R. 3962 would add the citizenship and
immigration status verification procedures (discussed below) to the provisions of the bill
pertaining to federal grants to state “high risk” pools.
Unauthorized aliens would not be eligible for the premium and cost-sharing credit in any of the
major bills. They would not be among those eligible for the cost-sharing credit in S. 1679.
Section 347 of H.R. 3962 states, “Nothing in this subtitle shall allow Federal payments for
affordability credits on behalf of individuals who are not lawfully present in the United States.”
Similarly, unauthorized aliens would be excluded from receiving the premium credit or costsharing subsidy in S. 1796 and the Senate-passed H.R. 3590.30
As alluded to above, S. 1796 provides further specification on how mixed status families would
be treated in calculating the premium credit. It states
If any individual for whom the taxpayer is allowed a deduction under section 151 (relating to
allowance of deduction for personal exemptions) for the taxable year is an undocumented
alien—(A) no credit shall be allowed under subsection (a) with respect to any portion of any
premium taken into account under clause (i) or (ii) of subsection (b)(2)(A) which is
attributable to the individual, and (B) the individual shall not be taken into account in
determining the family size involved but the individual’s modified gross income shall be
taken into account in determining household income.31
The Senate-passed H.R. 3590 is comparable to S. 1796 in its treatment of mixed status families
when calculating the premium credit. It would, however, offer two methods:
(B) for purposes of applying this section, the determination as to what percentage a tax
payer’s household income bears to the poverty level for a family of the size involved shall be
made under one of the following methods: i) A method under which—‘‘(I) the taxpayer’s
28
Section 1312(f)(3) of the Patient Protection and Affordable Care Act, an amendment in the nature of a substitute to
H.R. 3590, as proposed in the Senate on November 18, 2009.
29
For further discussion of “high risk” pools, see CRS Report RL31745, Health Insurance: State High Risk Pools, by
(name redacted).
30
Section 2236 of S. 1796 as reported by the Senate Committee on Finance.
31
Section 1205 of S. 1796 as reported by the Senate Committee on Finance.
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family size is determined by not taking such individuals into account, and ‘‘(II) the
taxpayer’s household income is equal to the product of the taxpayer’s household income
(determined without regard to this subsection) and a fraction—‘‘(aa) the numerator of which
is the poverty line for the taxpayer’s family size determined after application of subclause (I),
and ‘‘(bb) the denominator of which is the poverty line for the taxpayer’s family size
determined without regard to subclause (I). ‘‘(ii) A comparable method reaching the same
result as the method under clause (i).32
The Senate-passed H.R. 3590 expressly affirms that LPRs who are below the poverty thresholds
and barred from Medicaid because of alienage (as discussed fully below) would be eligible for
the premium and cost-sharing credit.33
What Is Current Law on Noncitizen Eligibility for Federal MeansTested Health Care?
More than a decade ago, Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA) of 1996 (P.L. 104-193) established comprehensive restrictions on
the eligibility of all noncitizens for federal means-tested public assistance, with exceptions for
LPRs with a substantial U.S. work history or military connection. Prior to 1996, LPRs were not
categorically barred from federal assistance programs.34
Under current law, most newly arriving LPRs are barred from Medicaid and the state Children’s
Health Insurance Program (CHIP) for the first five years after entry. After five years, LPRs are
eligible for CHIP, but their subsequent coverage for Medicaid becomes the state’s option.
Longtime LPRs resident as of August 22, 1996, are allowed Medicaid at state option. Those LPRs
with a substantial work history—generally 10 years (40 quarters) of work documented by Social
Security or other employment records—or a military connection (active duty military personnel,
veterans, and their families) are also eligible. Medicaid coverage is required for all otherwise
qualified Supplemental Security Income (SSI) recipients, so long as they meet SSI noncitizen
eligibility tests.
Aliens who arrive as refugees or who become asylees are an exception to the five-year bar for
LPRs. Refugees and asylees are eligible for Medicaid until they have been in the United States
for seven years. After the initial seven years for refugees and asylees, states have the option to
continue to provide Medicaid. For further details, see Appendix A.
The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA 2009, P.L. 1113) gives states the option of providing Medicaid and CHIP to certain children and pregnant
32
Section 1401(a) of the Patient Protection and Affordable Care Act, an amendment in the nature of a substitute to
H.R. 3590, as proposed in the Senate on November 18, 2009.
33
Section 1401(a) of the Patient Protection and Affordable Care Act, an amendment in the nature of a substitute to
H.R. 3590, as proposed in the Senate on November 18, 2009.
34
For further discussion of legal permanent residents’ eligibility, see CRS Report RL33809, Noncitizen Eligibility for
Federal Public Assistance: Policy Overview and Trends, by (name redacted), and CRS Report RL34500,
Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues, by (name redacted). For analysis of noncitizens
in the context of Medicaid and CHIP, see CRS Report R40772, Noncitizen Health Insurance Coverage and Use of
Select Safety-Net Providers, by (name redacted); CRS Report R40773,
Treatment of Noncitizens in H.R. 3200, by (name r
edacted) and (name redacted); and CRS Report R40144,
State Medicaid and CHIP Coverage of Noncitizens, by (name
redacted).
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women who are LPRs during the first five years that they are living in the United States, and to
battered individuals (described in section 431(c) of PRWORA) lawfully residing in the United
States during their first five years in the United States.
Regarding nonimmigrants and unauthorized aliens, §401 of PRWORA bars them from any
federal public benefit except the emergency services and programs expressly listed in §401(b) of
PRWORA. Treatment under Medicaid for emergency medical conditions (other than those related
to an organ transplant) is one of the statutory exceptions to the bar.35 PRWORA mandated that
unauthorized alien women be ineligible for prenatal care under Medicaid. In Lewis v. Thompson,
the court found that citizen children of unauthorized alien mothers must be accorded automatic
eligibility on terms as favorable as those available to the children of citizen mothers.36 CHIP is
considered a federal public benefit that unauthorized aliens and nonimmigrants are statutorily
barred from receiving.37
Eligibility for Existing Federal Means-Tested Health Care Coverage in Major
Health Care Reform Bills
None of the major health care reform bills would alter the noncitizen eligibility laws pertaining to
Medicaid or CHIP.38
What are the Current Employment Rules for and Tax Obligations of
Noncitizens?
All LPRs are permitted to work and are classified for tax purposes as resident aliens. There are
categories of aliens who are not LPRs but who may be working and residing in the United States
for periods of time sufficient to qualify under the Internal Revenue Code’s “substantial presence”
test (and thus would generally be classified for tax purposes as a resident alien).39 The main
classes of employment-authorized noncitizens are listed in Appendix C. The Internal Revenue
35
§401(c) of PRWORA, 8 U.S.C. 1611.
Lewis v. Thompson, 252 F.3d 567, 588 (2d. Cir. 2001). For a complete analysis, see CRS Report RS21470,
Noncitizen Eligibility For Major Federal Public Assistance Programs: Legal Concepts, by (name redacted).
37
§ 401(c) of PRWORA [8 U.S.C. 1611 ] defines federal public benefit as “any grant, contract, loan, professional
license, or commercial license provided by an agency of the United States or by appropriated funds of the United
States; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food
assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an
individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the
United States.” See also U.S. Department of Health and Human Services and Department of Justice, “Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA): Federal Benefit Interpretation; Notice
of Eligibility for Federal Public Benefits Verification,” 63 Federal Register 41658, August 4, 1998
38
In H.R. 3962, LPRs who are barred from Medicaid and below 150% of the poverty level would be eligible for the
affordability credits in 2013, but the credit would be based upon 150% of poverty. In S. 1796, LPRs who are barred
from Medicaid and below 100% of the poverty level would be eligible for premium and cost-sharing subsidies
beginning in 2014.
39
The substantial presence test is met when the individual is present in the United States for at least 31 days during the
current year and at least 183 days during the current year and previous two years. For computing the 183 days, a
formula is used that counts all the qualifying days in the current year, one-third of the qualifying days in the immediate
preceding year, and one-sixth of the qualifying days in the second preceding year. I.R.C. §§ 7701(b)(1)(A) and (b)(3).
For a full discussion, see CRS Report RS21732, Federal Taxation of Aliens Working in the United States and Selected
Legislation, by (name redacted).
36
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Code does not use Immigration and Nationality Act definitions for the various classes of
noncitizens in the United States. Instead, the Code treats all foreign nationals in the same
manner—they are subject to federal taxes and classified for tax purposes as either resident or
nonresident aliens. An unauthorized individual who has been in the United States long enough to
qualify under the “substantial presence” test is classified for tax purposes as a resident alien. 40 For
further details, see Appendix A.
Noncitizens who are authorized to work in the United States are eligible for Social Security
numbers (SSNs). There are statutory evidentiary requirements to receive an SSN. The Social
Security Amendments of 1972 (P.L. 92-603) required the SSA to establish age, citizenship (or
alien status), and identity of the applicant.
Resident aliens are generally eligible to claim refundable tax credits. In an attempt to prevent
unauthorized individuals who are resident aliens from claiming the earned income tax credit
(EITC) and the recovery rebates included in the Economic Stimulus Act of 2008, taxpayers are
required to provide SSNs for themselves, their spouses (if filing joint returns), and their
qualifying children.41 There is no similar requirement for other refundable credits, such as the
additional child tax credit, and it appears that some unauthorized aliens claim that credit.42 There
is no indication that the IRS generally considers refundable tax credits to be federal public
benefits that unauthorized migrants are barred from receiving.43
Obligations and Eligibility for Existing Federal Tax Provisions in Major
Health Care Reform Bills
None of the major health care reform bills would alter the laws that authorized the employment of
noncitizens, nor would the bills revise the Internal Revenue Code’s definitions of resident or
nonresident aliens.
How Is Immigration and Citizenship Status Verified?
Determining a person’s immigration and citizenship status is not always easy; however, foreign
nationals legally in the United States have documents issued by the federal government that may
be used to establish legal immigration status. The U.S. Department of Homeland Security (DHS)
maintains various databases that record the immigration and citizenship status of foreign nationals
in the United States. This section describes the most common documents and databases used to
40
CRS Report RS21732, Federal Taxation of Aliens Working in the United States and Selected Legislation, by (name
redacted).
41
The EITC provision is in §451 of PRWORA, P.L. 104-193 (8 U.S.C. 1161). The recovery rebates provision is in
§101(a) of the Economic Stimulus Act of 2008, P.L. 110-185.
42
See Treasury Inspector General for Tax Administration, The Internal Revenue Service’s Individual Taxpayer
Identification Number Creates Significant Challenges for Tax Administration, Report No. 2004-30-023, at 3 (January
2004) (stating that “unauthorized resident aliens are eligible for the Additional Child Tax Credit (ACTC), which is one
of only two major credits that can result in a Federal Government payment above the tax liability. In TY 2001, $160.5
million was given to approximately 203,000 unauthorized resident aliens, with about 190,000 of these filers having no
tax liability and receiving $151 million”).
43
CRS congressional distribution memorandum, Legal Analysis of Whether Section 401 of the Personal Responsibility
and Work Opportunity Reconciliation Act Prohibits Unauthorized Resident Aliens from Receiving Refundable Tax
Credits, by Erika Lunder and Edward Liu, July 28, 2008 (available on request).
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confirm immigration and citizenship status. Appendix D provides a more comprehensive list of
immigration documents that foreign-born persons in the United States may use to establish
identity and/or legal immigration status.
Documents Used to Establish Immigration and Citizenship Status
Citizenship Documents
The United States does not require its citizens to have legal documents that verify their
citizenship and identity (i.e., national identification cards). The U.S. passport and governmentissued certificates of birth, naturalization, and citizenship are the main documents provided to
verify U.S. citizenship. In some instances, a state-issued driver’s license (or other identity
document for which the state has verified the citizenship of the holder) or a military record
showing place of birth may be submitted as evidence of citizenship. Additional documents that
may be used to confirm citizenship include an adoption decree that shows a child’s name and
place of birth or a document that provides evidence of civil service employment before 1976.
Biometric Visas
All persons seeking admission to the United States must demonstrate to a DHS Customs and
Border Protection (CBP) inspector that they are either a foreign national with a valid visa or
passport or that they are a U.S. citizen. 44 For well over a dozen years, the consensus has been that
immigration documents also should include biometric identifiers. Congress imposed a statutory
requirement for the biometric border crossing card (known as the laser visa) for visitors from
Mexico in 199645 and added requirements for biometric visas in 2001 and 2002.46 Consular
officers use the Consular Consolidated Database (CCD) to electronically store data on visa
applicants, with some records dating back to the mid-1990s.47 Since February 2001, the CCD has
stored the photographs of all visa applicants in electronic form, and more recently the CCD has
begun storing fingerprints of the right and left index fingers. Since October 2004, all visas issued
by the United States use biometric identifiers (e.g., finger scans) in addition to a photograph,
which has been collected for some time. More recently, CBP inspectors have begun 10-digit
fingerprint scans of foreign nationals entering the United States.
Permanent Resident Cards
The permanent resident card, often called a “green card” because it once had been printed on
green stock, is a plastic document similar to a credit card. It is the card that documents the person
44
There are special exceptions under the Western Hemisphere Travel Initiative established by §7209 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).
45
The laser visa, which includes a photograph and both index fingers as biometric identifiers, is issued to citizens of
Mexico to gain short-term entry (up to six months) for business or tourism into the United States. The Mexican laser
visa has traditionally been called a border crossing card (BCC). It may be used for multiple entries and is good for at
least 10 years.
46
§414 of the USA Patriot Act (P.L. 107-56) and §303 of the Enhanced Border Security and Visa Reform Act (P.L.
107-173) require that visas and other travel documents contain a biometric identifier and are tamper-resistant.
47
According to the Department of State Office of Legislative Affairs, consular officers have stored photographs of
nonimmigrant visa applicants in an electronic database for many years. These data are now in the CCD.
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as a legal permanent resident (LPR) of the United States. Since April 1998, the card has
incorporated security features, including digital images, holograms, micro-printing, and an optical
memory stripe. It has digital photograph and fingerprint images, which are an integral part of the
card and, therefore, tamper-resistant. It features a hologram depicting the Statue of Liberty, the
letters “USA” in large print, an outline of the United States, and a government seal.
On the reverse side of the permanent resident card is an optical memory stripe—similar to CDROM disk technology—with an engraved version of the information contained on the front of the
card, including the cardholder’s photograph, name, signature, date of birth, and alien registration
number. This laser-etched information cannot be erased or altered. In addition, this same
information, along with the cardholder’s fingerprint, is digitally encoded in the stripe and can be
read only by a specially designed scanner.
Employment Eligibility Documents
Aliens who are temporarily in the United States and eligible to work may file a request for an
employment authorization document (EAD). All LPRs are permitted to work, so they do not need
to have EADs. The EAD is often confused with “green card” because the document provides a
foreign national with the authority to work in the United States. Nonimmigrants who have
temporary worker visas, such as H-1Bs or H-2A visaholders, do not need to have EADs because
permission to work is inherent in their nonimmigrant visa. Other aliens who are authorized to
work in the United States without restrictions also apply to U.S. Citizenship and Immigration
Service (USCIS) for EADs. Examples of aliens who may obtain EADs are refugees, asylum
applicants and asylees with cases pending, aliens who are covered under Temporary Protected
Status (TPS), certain aliens who have approved LPR petitions and are waiting for an LPR visa to
become available, aliens for whom an immigration judge or the Attorney General has granted
relief from removal, and specified nonimmigrants.48 The EAD has incorporated security features,
including digital images, holograms, and micro-printing, since 1998.
Databases Used to Verify Immigration and Citizenship Status
Social Security Numbers and Citizenship Status
The Social Security Act requires applicants for many federal benefits programs, including
Medicaid, 49 to provide their Social Security number (SSNs) as a condition of eligibility for
benefits. 50 The applicants are also required to declare in writing—under penalty of perjury—
“whether the individual is a citizen or national of the United States, and, if that individual is not a
48
Such as a foreign student on an F visas who obtains special permission to work off-campus.
§1137(b) of the Social Security Act states: “The programs which must participate in the income and eligibility
verification system are—(1) any State program funded under part A of title IV of this Act; (2) the medicaid program
under title XIX of this Act; (3) the unemployment compensation program under section 3304 of the Internal Revenue
Code of 1954; (4) the supplemental nutrition assistance program under the Food and Nutrition Act of 2008; and any
State program under a plan approved under title I, X, XIV, or XVI of this Act.” These cited programs are the
Temporary Assistance to Needy Families (TANF) Program, the Medicaid Program, and certain Territorial Assistance
Programs (U.S. Department of Health and Human Services); the Unemployment Compensation Program (U.S.
Department of Labor); Title IV Educational Assistance Programs (U.S. Department of Education); and certain Housing
Assistance Programs (U.S. Department of Housing and Urban Development).
50
§1137 of the Social Security Act; 42 U.S.C. 1320b–7.
49
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citizen or national of the United States, that the individual is in a satisfactory immigration
status.”51 For the purposes of determining Medicaid eligibility, individuals who declare that they
are citizens also must present documentation that proves citizenship.52 States have the option of
submitting the name and SSN of an applicant to the Social Security Administration (SSA). The
SSA in turn checks the information received from the states against the SSA database to
determine whether the name and SSN match and whether the applicant is a citizen according to
the SSA database.53 Table A-1 presents classes of foreign-born persons according to their
eligibility to obtain SSNs and their eligibility to receive Medicaid.
As stated above, the SSA must obtain evidence to establish age, citizenship (or alien status), and
identity of the applicant. As of November 2008, the SSA requires applicants to present for
identification a document that shows name, identifying information, and preferably a recent
photograph.54 The SSA also requires that all documents be either originals or copies certified by
the issuing agency.55
Importantly, the SSN issued to a noncitizen does not automatically change to reflect an expired
visa (e.g., a nonimmigrant worker remains in the United States after his or her temporary visa
expires), when the noncitizen adjusts immigration status (e.g., a person who is in the United
States temporarily may marry a U.S. citizen and become an LPR), or when the LPR naturalizes as
a U.S. citizen. Although people are supposed to report any change of status to SSA, this reporting
does not always occur.
Social Security cards issued to noncitizens who are residing permanently in the United States are
identical to those issued to U.S. citizens. Social Security cards issued to noncitizens who are
temporarily in the United States bear the inscription “VALID FOR WORK ONLY WITH DHS
AUTHORIZATION.” The SSA also issues SSNs to noncitizens who are not authorized to work if
the noncitizen is legally in the United States and needs an SSN to receive state or federal benefits
or services. 56 Social Security cards issued for this purpose bear the legend “NOT VALID FOR
EMPLOYMENT.” It is possible that some naturalized U.S. citizens have Social Security cards
with the inscription “VALID FOR WORK ONLY WITH DHS AUTHORIZATION” if they
originally obtained the SSN and card before they became an LPR and subsequently a U.S.
citizen. 57
51
§1137(d) of the Social Security Act; 42 U.S.C. 1320b–7.
This requirement, found in §1903(x) of the Social Security Act, lists four documents that meet the statutory
requirements: a U.S. Passport, a Certificate of Naturalization, a Certificate of United States Citizenship, or a stateissued driver’s license or other identity document for which the state has verified the citizenship of the holder. The
Secretary may by regulation specify other documents, in addition to the four principal documents, so long as the
documents provide both proof of U.S. citizenship and a reliable means of documentation of personal identity.
53
§1903(x) of the SSA as amended by §211 of the Children’s Health Insurance Program Reauthorization Act of 2009
(CHIPRA 2009), P.L. 111-3. CRS Report RS22629, Medicaid Citizenship Documentation, by (name redacted).
54
Implementing §7213 of the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458.
55
Social Security Administration, New Rules for Getting a Social Security Number and Card, SSA Publication No. 0510120, November 2008.
56
See 20 C.F.R. 422.104. Prior to late 2003, the policy for assignment of nonwork SSNs was less restrictive, and
noncitizens could be assigned an SSN for a variety of nonwork purposes, such as to obtain a driver’s license.
57
CRS Report RL32004, Social Security Benefits for Noncitizens, by (name redacted) and (name redacted).
52
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Systematic Alien Verification for Entitlements (SAVE) System
As an alternative to relying on the inspection of documents to determine immigrant eligibility for
federal benefits, the Systematic Alien Verification for Entitlements (SAVE) system provides
federal, state, and local government agencies access to data on immigration status that are
necessary to determine noncitizen eligibility for public benefits. The USCIS does not determine
benefit eligibility; rather, SAVE enables the specific program administrators to ensure that only
those noncitizens and naturalized citizens who meet their program’s eligibility rules actually
receive public benefits. According to USCIS, SAVE draws on the Verification Information
System (VIS) database, which is a nationally accessible database of selected immigration and
naturalization status information that contains over 60 million records.58
SAVE’s statutory authority dates back to the Immigration Reform and Control Act of 1986
(IRCA).59 The IRCA, as amended, mandates the following programs and agencies to participate
in the verification of an applicant’s immigration status: the Temporary Assistance to Needy
Families (TANF) Program; the Medicaid Program; Supplemental Nutrition Assistance Program
(formerly the Food Stamp program); the Unemployment Compensation Program; Title IV
Educational Assistance Programs; and certain Housing Assistance Programs. In 1996, PRWORA
required the Attorney General to establish procedures for a person seeking benefits to provide
citizenship information in a fair, nondiscriminatory manner.60
According to USCIS, state and local agencies may access SAVE through several different Webbased Internet technologies or by a manual verification (by submitting a formal document
verification request). SAVE charges fees to the agencies using Web-based Internet access. These
agencies must have a Memorandum of Understanding (MOU) and a purchase order with the
SAVE program contractor to pay the transaction fees.
The SAVE system does not require a SSN. The key to SAVE is the immigration document
number (e.g., number from the individual’s permanent resident card, employment authorization
document, or I-94 document) and the person’s name, date of birth, and nationality. According to
officials at USCIS, accessing SAVE through Web-based Internet technologies takes about 3-5
seconds. If the initial electronic search comes up “no match,” the next step is an additional
verification that takes 3-5 days because a DHS staffer manually does electronic searches through
the various DHS databases. 61 If this step does not yield verification, then the G-845 Document
Verification Request form is submitted along with the relevant immigration documents.
Verification Provisions in Major Health Care Reform Bills
Under S. 1679, the Secretary of Health and Human Services (HHS) would be required to verify
an individual’s eligibility to enroll in the premium credits available through the exchange. 62
58
The VIS database is also used for the E-Verify system that employers may use to check whether an alien is
authorized to work in the United States. CRS Report R40446, Electronic Employment Eligibility Verification, by
(name redacted), discusses evaluations of the accuracy of the electronic verification databases.
59
§1137 of the SSA, as amended by P.L. 99-603.
60
P.L. 104-193, §432. It is unclear whether this responsibility of the Attorney General was transferred to the Secretary
of Homeland Security in 2003 by the Homeland Security Act of 2002 (P.L. 107-296).
61
Telephone conversation of author with USCIS officials on September 14, 2009.
62
Section 151 of S. 1679 would create §3111(d)(3)(A)(i) in Title XXXI of the Public Health Service Act to require this
(continued...)
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Although §151 of S. 1679 would provide the option of conducting income verification according
to §1137 of the Social Security Act, it does not specify using §1137 for the eligibility
determinations.63
The Senate-passed H.R. 3590 and S. 1796 would use three pieces of personal data to verify
citizenship and immigration status. The Social Security Administration (SSA) would verify the
name, social security number, and date of birth of the individual. For those claiming to be U.S.
citizens, the claim will be considered substantiated if the claim of citizenship is consistent with
SSA data. For individuals who do not claim to be U.S. citizens but claim to be lawfully present in
the United States, the claim will be considered substantiated if the claim of lawful presence is
consistent with Department of Homeland Security (DHS) data. Although this language mirrors
the SAVE process, the legislation does not expressly reference SAVE. In S. 1796, individuals
whose claims of citizenship or immigration status are not verified with federal data would be
allowed substantial opportunity to provide additional documentation or to correct federal data
related to their cases.64 The Senate-passed H.R. 3590 is comparable to S. 1796, except that it
would rely on procedures currently used by Medicaid (i.e., §1902(e) of the SSA) for individuals
whose claims of citizenship or immigration status are not verified with federal data.65
H.R. 3962 would expressly require the Health Choices Commissioner to verify citizenship and
immigration status. Indeed, §341 of H.R. 3962 references §1137(d) of the SSA, which is the
statutory authority for the SAVE system. In other words, the House bill would extend, with
modifications, the citizenship verification procedures as well as the noncitizen verification
procedures that currently apply to Medicaid and other federal means-tested programs to the
citizenship and immigration determination for the proposed premium and cost-sharing credit.66
Among the modifications to §1137(d) would be to enable the Health Choices Commissioner to
make the eligibility determination.
Closing Observations
Addressing the policy questions of coverage, eligibility, and verification that arise directly from
the nexus of immigration policy and health care reform is both complicated and controversial. In
addition to these first-order policy questions, second-order questions come to mind. For example,
if unauthorized aliens are exempted from the mandate to purchase health insurance, will they be
potentially able to underbid their U.S. counterparts in the labor market, particularly among private
contractors and the self-employed? Will health care providers be less likely to provide medical
treatment to uninsured people whom they presume are likely to be unauthorized aliens? Will
(...continued)
verification.
63
§1137 of the Social Security Act provides the statutory authority requiring Medicaid to participate in the Systematic
Alien Verification for Entitlements (SAVE) system. For more on this issue in the context of Medicaid, see CRS Report
R40144, State Medicaid and CHIP Coverage of Noncitizens, by (name redacted), and CRS Report RS22629,
Medicaid Citizenship Documentation, by (name redacted).
64
Section 2238 of S. 1796, as reported by the Senate Committee on Finance.
65
Section 1411 of the Patient Protection and Affordable Care Act, an amendment in the nature of a substitute to H.R.
3590, as proposed in the Senate on November 18, 2009.
66
For further discussion of current law on Medicaid citizenship verification, see CRS Report RS22629, Medicaid
Citizenship Documentation, by (name redacted).
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citizen children in mixed-status families be negatively affected in the premium subsidy
calculations if their unauthorized parent is ineligible? Should the “five-year bar” on federal
means-tested benefits include the premium subsidies for low- and moderate-income LPRs who
would be otherwise eligible during their first five years in the United States? Should U.S.
residents who sponsor immigrants to the United States be required to assume some financial
responsibility for the health insurance coverage of newly arriving LPRs? These are among the
vexing questions that might arise in subsequent debates.
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Appendix A. Classes of Noncitizens and Their
Eligibility to Obtain Social Security Numbers, to
Qualify as a Resident Alien, and to Receive
Medicaid
Table A-1. Classes of Noncitizens and Their Eligibility to Obtain Social Security
Numbers, to Qualify as a Resident Alien, and to Receive Medicaid
Class of Alien
Social Security
Numbers
Resident Alien for
Tax Purposes
Medicaid
Legal permanent residents
(LPRs):
—during first five years
Eligible.
Yes
Generally ineligible,
except states have the
option of providing
Medicaid to certain
children and pregnant
women who are LPRs.
—after five years
Eligible.
Yes
Eligible only at state
option until LPR has
substantial (generally 10year) work history,a
—without a substantial (generally
10-year) work history,a
Eligible.
Yes
—with a substantial (generally 10year) work history.a
Military connection: aliens with a
military connection (active duty
military personnel, honorably
discharged veterans, and their
immediate families).
Humanitarian cases:
—asylees, refugees, Cuban/Haitian
entrants, Iraqi and Afghan special
immigrants, certain aliens whose
deportation/removal is being
withheld for humanitarian reasons,
and Vietnam-born Amerasians
fathered by U.S. citizens.c
Special Cases:
—noncitizen “cross-border”
American Indians,e
Eligible.
Yes
Eligibility required for
persons with a military
connection. Plus
coverage required for
SSI recipients. (Note: all
aliens are eligible for
emergency medical
services.)
Eligible.
Eligible.b
Yes
Eligible.b
Eligible.
Yes, if they are LPRs or
they meet the
substantial presence
test. d
Eligible for 7 years after
entry/grant of such
status. Eligible at state
option after 7 years.
Eligible.
Yes, if they are LPRs or
they meet the
substantial presence
test.
Eligible.
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Class of Alien
Social Security
Numbers
Resident Alien for
Tax Purposes
Medicaid
Eligible only if individual
meets eligibility criteria
for another noncitizen
category—e.g., as a legal
permanent resident,
asylee, refugee, person
with a military
connection. (Note: LPRs
eligible under conditions
noted above for
Medicaid treatment of
LPRs.)
Eligible if resident as of
August 22, 1996.
Ineligible for 5 years
after entry, if entry is
post-August 22, 1996.
Otherwise eligible at
state option.
Eligible if resident as of
August 22, 1996.
Ineligible for 5 years
after entry, if entry is
post-August 22, 1996.
Otherwise eligible at
state option.
—Hmong/Highland Laotians,f
Eligible.
Yes, if they are LPRs or
they meet the
substantial presence
test.
—parolees and conditional entrants,g
Eligible.
Yes, if they meet the
substantial presence
test.
—cases of abuse (battery or
extreme cruelty),h
Eligible.
Yes, if they are LPRs or
they meet the
substantial presence
test.
—victims of trafficking in persons,i
Eligible.
—aliens in temporary protected
status, in extended voluntary
departure (EVD) status, or deferred
enforced departure (DED) status.
Nonimmigrantsj
Eligible.
Yes, if they meet the
substantial presence
test.
Yes, if they meet the
substantial presence
test.
Eligible for 7 years after
entry. Eligible at state
option after 7 years.
Eligible only for
emergency services.
No, except those who
meet the substantial
presence testk.
Eligible only for
emergency services,
provided individual
meets other eligibility
requirements.
Eligible only for
emergency services,
provided individual
meets other eligibility
requirements.
Unauthorized aliensl
Ineligible, except if
nonimmigrant visa
expressly permits the
alien to work in the
United States.
Ineligible.
No, except those who
meet the substantial
presence test.
Source: CRS.
a.
A substantial work history consists of 40 “qualifying quarters” of work (credits) calculated as they would be
for Social Security eligibility purposes—including work not covered by Social Security and work credited
from parents and spouses, but not including work performed after 1996 while receiving federal meanstested benefits like TANF, food stamps, or Medicaid. A qualifying quarter is a three-month period of full or
part-time work with sufficient income to qualify the earner for credit toward eligibility for Social Security
benefits. The qualifying quarter income amount is increased annually; no more than four credit quarters can
be earned in any one year. The qualifying quarter test takes into account work by an alien’s parent before
the alien became 18 (including work before the alien was born/adopted) and by the alien’s spouse (provided
the alien remains married to the spouse or the spouse is deceased).
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b.
Eligible military personnel, veterans, and immediate family members also must be a legal permanent resident,
or an asylee, refugee, Cuban/Haitian entrant, alien whose deportation/removal is being withheld, parolee, or
conditional entrant.
c.
Includes Amerasians admitted as immigrants who were born in Vietnam during the Vietnam era and
fathered by a U.S. citizen—as well as their spouses, children, and certain other immediate family members.
d.
Substantial presence test: is met when the individual is present in the United States for at least 31 days
during the current year and at least 183 days during the current year and previous two years. For
computing the 183 days, a formula is used that counts all the qualifying days in the current year, one-third of
the qualifying days in the immediate preceding year, and one-sixth of the qualifying days in the second
preceding year. I.R.C. §§ 7701(b)(1)(A) and (b)(3). A nonresident alien may elect, under certain
circumstances, to be treated as a resident alien if the substantial presence test is met in the year following
the election. I.R.C. § 7701(b)(4). A dual-status or nonresident alien married to a U.S. citizen or resident may
qualify to be treated as a resident alien for the entire year. I.R.C. §§ 6013(g) and (h).
e.
Noncitizen “cross-border” American Indians (from Canada or Mexico) are noncitizens who belong to a
federally recognized tribe or who were born in Canada and have the right to cross the Canadian-U.S.
border unhindered (so-called “Jay Treaty” Indians).
f.
Members of a Hmong or Highland Laotian tribe when the tribe assisted U.S. personnel by taking part in
military/rescue missions during the Vietnam era—including spouses and unmarried dependent children.
g.
Eligible parolees must be paroled for at least one year.
h.
Eligibility in abuse cases is limited to aliens who have been abused (subject to battery or extreme cruelty) in
the U.S. by a spouse or other family/household member, aliens whose children have been abused, and alien
children whose parent has been abused—where the alien has been approved for, or has pending an
application/petition with a prima facie case for, immigration preference as a spouse or child or cancellation
of removal. The alien cannot be residing with the individual responsible for the abuse, and the agency
providing benefits must determine that there is a substantial connection between the abuse and the need
for benefits.
i.
Eligible for treatment as refugees under the provisions of Section 107 of the Victims of Trafficking and
Violence Protection Act of 2000 (P.L. 106-386). Eligible victims of trafficking in persons are those subjected
to (1) sex trafficking where the act is induced by force, fraud, or coercion, or the person induced to
perform the act is under age 18, or (2) involuntary servitude. If age 18 or older, they must be “certified” as
willing to assist in the investigation and prosecution of the trafficker(s) and have made an application for a
nonimmigrant “T” visa (or be in the U.S. to ensure the effective prosecution of the trafficker[s]).
j.
Nonimmigrants are those admitted temporarily for a limited purpose (e.g., students, visitors, or temporary
workers).
k.
Most nonimmigrants enter as visitors for business or tourism and thus would not meet the substantial
presence test, which is described above in table note d. Many of the nonimmigrants who enter as
temporary workers of intracompany transfers would meet the substantial presence test. Resident aliens
who are employees of foreign governments and international organizations may qualify to exempt their
compensation from taxation. I.R.C. § 893.
l.
Unauthorized (“illegal”) aliens are those in the U.S. in violation of immigration law for whom no legal relief
or recognition has been extended.
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Appendix B. Deeming and Sponsorship
For LPRs (but not refugees and asylees), the law links the income of the person who sponsored
the alien to immigrate to the United States with the immigrant’s income calculations when
determining eligibility for most federal benefits. The basis of this policy is that the Immigration
and Nationality Act excludes immigrants who appear “likely at any time to become a public
charge.”67 This exclusion is implemented by provisions on deeming sponsors’ income and binding
affidavits of support. Not all prospective LPRs are required to have affidavits of support to
demonstrate that they will not become a public charge, and most exceptions are statutory (e.g.,
refugees or employment-based LPRs).68
The affidavit of support is a legally binding contract that requires the sponsor to ensure that the
new immigrant will not become a public charge and to make the sponsor financially responsible
for the new immigrant, as codified in §213A of the Immigration and Nationality Act (INA).69
Sponsors must demonstrate the ability to maintain an annual income of at least 125% of the
federal poverty line (100% for sponsors who are on active duty in U.S. Armed Forces), or share
liability with one or more joint sponsors, each of whom must independently meet the income
requirement. Current law also directed the federal government to include “appropriate
information” regarding affidavits of support in the SAVE system. Congress has required the
establishment of an automated record of the sponsors’ social security numbers (SSN) in order to
implement this policy. 70
According to administrative guidance issued in 1999, the receipt of Medicaid or CHIP does not
trigger the deportation or removal of a noncitizen beneficiary. It also does not categorically
prevent a noncitizen beneficiary from sponsoring a potential LPR. The cash benefit, however,
cannot be included in the calculation of the beneficiary’s income if he or she signs an affidavit of
support for a potential LPR.71
Under the deeming rules, all of the income and resources of a sponsor (and a sponsor’s spouse)
may be deemed available to the sponsored applicant for assistance until the noncitizen becomes
naturalized or meets a work test. 72 The INA requires states to seek reimbursement of the costs of
federal means-tested benefits from the sponsors. The sponsor’s liability ends when the sponsored
67
The colony of Massachusetts enacted legislation in 1645 prohibiting the entry of paupers, and in 1700 excluding the
infirm unless security was given against their becoming public charges. New York adopted a similar practice. A bar
against the admission of “any person unable to take care of himself or herself without becoming a public charge” was
included in the act of August 3, 1882, the first general federal immigration law. It is now §212 (a)(4) of the INA; 8
U.S.C. 1182.
68
Employment-based LPRs, for example, meet the public charge ground by means of the job offer and need an
affidavit of support only if the prospective employer is a relative. 8 C.F.R. § 213a.1.
69
§ 213A of INA; 8 U.S.C. 1631. Fed. Reg., v, pp. 54346-56. Oct. 20, 1997.
70
§ 213A of INA; 8 U.S.C. 1631.
71
A 1999 memorandum stated that the “receipt of Medicaid or CHIP benefits will not be considered in making a public
charge determination, except in the case of an alien who is primarily dependent on the government for subsistence as
demonstrated by institutionalization for long-term care at government expense. This exception will not include shortterm rehabilitation stays in long-term care facilities.” The guidance further provided that the receipt of Medicaid or
CHIP benefits would not disqualify an LPR from sponsoring other immigrants (i.e., signing an affidavit of support for a
prospective LPR). U.S. Department of Health and Human Services, Health Care Financing Administration, Center for
Medicaid and State Operations, letter to State Health Officials, May 26, 1999.
72
§ 421 of PRWORA. Also in 8 USC 1631.
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alien is no longer subject to deeming, either through naturalization or meeting a work test.73 CHIP
was enacted after the list of programs meeting the PRWORA designation of federal means-tested
programs was proposed. 74 CHIPRA 2009 provided an exception to this rule in the cases of
children and pregnant women who are LPRs, and battered individuals lawfully residing in the
United States, during the first five years. More precisely, §214 of CHIPRA 2009 states that “no
debt shall accrue under an affidavit of support against any sponsor of such an alien on the basis of
provision of assistance to such category and the cost of such assistance shall not be considered as
an unreimbursed cost.”75
73
§ 213A of INA; 8 U.S.C. 1631.
Fed. Reg. v. 62, pp. 45256-58, Aug. 26, 1997.
75
According to the legislative language, the provision applies only to LPRs provided CHIP and Medicaid under §214
of this Act.
74
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Appendix C. Selected Categories of Non-LPR Aliens
Who Are Permitted to Work
There are categories of aliens who are not LPRs but who may be working and residing in the
United States for periods of time sufficient to qualify under the Internal Revenue Code’s
“substantial presence” test (and thus are classified for tax purposes as resident aliens, unless there
are specific treaty agreements between the United States and their country of citizenship).
The classes of nonimmigrants who are expressly permitted to work in the United States include
the following:
•
E treaty traders and investors.
•
H temporary workers.
•
NAFTA temporary workers.
•
Certain F foreign students who have obtained permission.
•
J and Q cultural exchange visitors.
•
L intracompany transfers.
•
K fiancees of U.S. citizens.
•
O and P extraordinary athletes, entertainers, and performers.
•
R religious workers.
•
U crime victims.
•
V family members waiting for more than three years.76
In addition to the nonimmigrants specified above, the following classes of unauthorized aliens
have acquired a “quasi-legal” status that often enables them to work:
•
Aliens who have been granted temporary protected status (TPS), extended
voluntary departure (EVD) status, or deferred enforced departure (DED) status
by the Attorney General or Secretary of Homeland Security.
•
Aliens with petitions pending to adjust to LPR status who have been given
employment authorization by the U.S. Citizenship and Immigration Services.
•
Aliens with asylum cases or relief from removal cases pending before the courts
who have been given employment authorization by the Executive Office for
Immigration Review.
76
For a complete listing of nonimmigrants who may work in the United States, see Table 2 in CRS Report RL31381,
U.S. Immigration Policy on Temporary Admissions, by (name redacted) and (name redacted).
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation
Appendix D. Major Immigration Documents That
Foreign-Born Persons in the United States May Use
to Establish Identity and/or Legal Immigration
Status
•
Permanent Resident Card I-551 (identity and status).
•
Foreign passport with temporary I-551 stamp or temporary I-551 noted on a
machine-readable visa (identity and status).
•
Employment authorization with photograph I-766 (identity and status).
•
Temporary Resident Employment Authorization Card I-688B.
•
Passports from the Federated States of Micronesia and the Republic of the
Marshall Islands (identity and status).
•
Refugee Travel Document I-571.
•
Arrival-Departure Record I-94 containing an expiration date that has not passed
and a notation indicating refugee or asylum status granted pursuant to §207 or
§208 of Immigration and Nationality Act.
•
Advance Parole Document I-512L.
•
Permit to Reenter the United States I-327.
•
Certification of Birth Abroad issued by the State Department FS-540 or FS-545.
•
Certification of Report of Birth Abroad issued by the State Department DS-1350.
•
Certificate of Citizenship N-560 or N-561.
•
Naturalization Certificate N-550 or N-570.
Author Contact Information
(name redacted)
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
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