New and proposed immigration requirements for documented and undocumented immigrants could impact employers who offer health care coverage. Prior to the new requirement, immigrants who wanted to qualify for an employer-sponsored health plan had to be able to show that they had a green card, permanent resident or citizenship status.

Undocumented immigrants could get coverage if their spouses legally worked in this country and had access to an employer-sponsored plan. All refugees, asylum seekers or people on temporary visitor visas now must prove they can obtain health insurance before they receive a visa. Visa applicants will have to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States or they will have to prove that they have the financial means to “pay for reasonably foreseeable medical costs.”

The new requirement was put into effect on Nov. 3 and is part of a presidential proclamation on immigrants and health care, issued by President Trump on Oct. 4. The requirement is grounded in the U.S. immigration law’s “public charge” doctrine. A public charge is someone who receives certain public benefits. Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust their status to permanent resident (obtaining a green card) must not be (or likely to be) a public charge at the time they apply.

If you hire an employee who is in the process of obtaining a visa, you will need to ensure they comply. They will not be in compliance if they purchase a plan using subsidies through the Affordable Care Act (ACA) Health Insurance Marketplace or Exchanges; or through the Children’s Health Insurance Program (“CHIP”) for dependents. However, employer-provided coverage, individually purchased plans, and catastrophic or short-term limited-duration plans will count.

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