By Majesta-Doré Legnini, J.D. Class of 2022
Access to health care is always a hot topic in the news. This topic became an even bigger focus earlier this year here in Virginia when the Commonwealth made some changes to the Virginia Medicaid law. It quickly made headlines that the Virginia General Assembly had accomplished something that the Assembly had sought to achieve for years—expanding Medicaid to cover immigrants. Or so many of the headlines covering the newly passed legislation made it seem (such as this article entitled Virginia Expands Medicaid Access for Legal Immigrants from AP News).
However, if one starts reading the actual report and the new law, it quickly becomes clear that although many more people gained eligibility for Virginia Medicaid, there are still a number of hurdles in place that require clarification. Below is some basic information about the new law, and other ways people with different statuses may acquire health care coverage in Virginia.
Medicaid
Medicaid is the cooperative system that is partly funded by the Federal government, but administered and partly financed by each state. The states have flexibility in determining eligibility standards. These eligibility standards are what Virginia changed back in April. Before April 1, 2021, lawful permanent residents (“green card holders”) could qualify for Virginia Medicaid only after U.S. residency for five years and showing 10 years of work history, in addition to traditional eligibility requirements such as low income. This work requirement meant that lawful permanent residents who resided in the U.S. for 5 years, but could not show 10 years or more of work history, did not qualify for Virginia Medicaid. When the new law went into effect on April 1, it removed the work requirement. It did not remove the 5-year residency requirement, which is a Federal requirement.
Under these new rules, a lawful permanent resident no longer needs to show any work history. Rather, they must show that they have 5 years of residency in the United States (beginning from the date they became a lawful permanent resident) and they meet other Medicaid eligibility requirements, including requirements to qualify either for traditional Medicaid or the expansion effective January 1, 2019.
But what about people who do not hold lawful permanent resident status? What are their options?
The requirements to qualify for Virginia Medicaid have not changed for people who do not hold lawful permanent resident status. Several other immigration statuses other than lawful permanent residency are qualifying statuses for the purposes of Virginia Medicaid. For example, people who have been paroled into the U.S. may qualify if they meet traditional Medicaid or Expansion eligibility and show 5-year residency in the U.S. (See Table 1 below).
No one with a qualifying immigrant status has to show that they have a work history to qualify for Virginia Medicaid. There are some status holders who do not have to show that they have 5-year residency either. For example, people who have applied to adjust to LPR status, or who are asylees or refugees, do not need to show 5-year residency. They only need to meet Traditional or Expansion eligibility. The table below breaks down which status holders must meet the 5-year residency requirement. (Adapted from CoverVA and Centers for Medicare and Medicaid Services).
Table 1. Immigration Statuses that may qualify for Virginia Medicaid, if they meet requirements for Traditional Medicaid or the Expansion
| And Must Show 5-Year US Residency | And Do Not Need 5-Year Residency |
| Battered Spouse, Child, and Parent with Pending or Approved Petition | Certain Amerasian Immigrants |
| Conditional Entrant | Applicant for Adjustment to LPR Status, with Approved Visa Petition* |
| Lawful Permanent Resident | Applicant for Withholding of Deportation or Withholding of Removal, Under the Immigration Laws or Under Convention Against Torture** |
| Paroled into the U.S. (at least one year) | Asylee |
| Cuban or Haitian Entrant Status | |
| Refugee | |
| Spouse, Child, Sibling of Trafficking Victim | |
| Victim of Trafficking |
**Centers for Medicare and Medicaid Services states that the application should be “granted.”
As the table above shows, asylees (the term for those who have been granted asylum), people who have filed for asylum (asylum seekers), refugees, and T-visa holders, among others have fewer requirements to apply for Virginia Medicaid than lawful permanent residents discussed above. Asylees, for example, need only meet the either the Traditional Medicaid or Expansion eligibility requirements, and do not need to prove that they have resided in the U.S. for the past 5 years.
Ultimately, Virginia Medicaid considers many different statuses for eligibility. Importantly, everyone applying for Medicaid must meet the Traditional or Expansion eligibility requirements, such as income. With those considerations, it is also important to know which qualifying statuses do not have a 5-year residency requirement to ensure that people who may qualify apply as soon as they are eligible and do not face undue delay to health care access.
The Health Insurance Marketplace/ACA Exchanges
Many statuses qualify for health insurance on the marketplace. The Marketplace offers plans spanning three “metal tiers.” It breaks down to how much the plan will pay compared to how much the patient will pay (cost-sharing). On the Marketplace, the options available are: Bronze covering 60%, Silver covering 70%, Gold covering 80%, and Platinum covering 90% of a typical population’s costs. This means that when converted to cost-sharing, someone who selects a Bronze plan will typically have 60% of their medical costs covered by the health plan, and they would have to pay the remaining 40% out-of-pocket. Generally, the larger the share of costs covered by the health plan under the plan’s cost-sharing rules, the greater the cost of the premium will be on the plan.
All status holders listed in Table 1 above are eligible to apply to purchase health insurance on the Marketplace. Others who are eligible to apply on the Marketplace are listed below in Table 2. (Adapted from CoverVA and Centers for Medicare and Medicaid Services)
Table 2. Status Holders Eligible to Apply to Purchase Health Insurance on the ACA Marketplace
| Applicant for Asylum | Deportation Withheld |
| Applicant for Cancellation of Removal or Suspension of Deportation | Hmong/Highland Laotians |
| Applicant for Legalization Under IRCA | Individual with Non-Immigrant Status (includes work/student Visas) |
| Applicant for Special Immigrant Status | Iraq/Afghani Special Immigrant |
| Applicant for Victim of Trafficking | Lawful Temporary Resident |
| Citizen of Micronesia, the Marshall Islands, and Palau | Legalization Under the LIFE Act |
| Deferred Action Status | Order of Supervision with EAD |
| Deferred Enforced Departure | Registry Applicants |
| Temporary Protected Status |
People with a qualifying status such as a pending T-visa application, pending asylum application, or students, do not need to prove residency in the U.S. or Virginia for a particular time period. This mechanism of accessing health insurance will become particularly important in the coming months as there is an increase of people from Afghanistan who hold a Special Immigrant Visas needing access to health care here in the United States.
There are fewer requirements to purchase health insurance on the Marketplace than there are requirements to qualify for Medicaid. A qualifying status grants access to the Marketplace and the applicant will have to answer a questionnaire that will direct them to the plan options available to them. Ultimately, the individual will decide how much they are able to spend on their plan each month and in each care setting.
People without Immigration Status
Unfortunately, there still are not many opportunities for people without immigration status to receive health insurance.
The primary coverage available to people without immigration documents is for pregnancy care (prenatal care). In Virginia, FAMIS Prenatal Coverage provides full coverage to pregnant individuals regardless of immigration status. There is no requirement to provide immigration documents or a social security number. However, applications require an estimated delivery date, number of children expected, proof of Virginia residency, and the applicant must meet the income rules and be otherwise uninsured. It is important to note that the immigration status requirement for this application is not the same as the one that is required to access Virginia Medicaid. To access Prenatal Coverage, the applicant must show only that they live in Virginia, as opposed to holding a “lawful resident” immigration status that is required for Virginia Medicaid.
Some medically necessary emergency services may be covered for children under 19 who do not meet the above Medicaid eligibility requirements, and the parent’s status is not considered when determining the child’s eligibility for that coverage.
Mixed Status Families
Only members of the family who meet the immigration status requirements are eligible for coverage through Medicaid or the Marketplace. Family members who have dependents who qualify for coverage on the Marketplace or for Medicaid are permitted to apply for that family member. They are also permitted to apply for additional ACA benefits (premium tax credits or lower out-of-pocket costs) for their dependent family members.
If not applying for coverage themselves, the person submitting the application will not be asked about their immigration status. ACA Marketplaces, state Medicaid, and CHIP (Children’s Health Insurance Program) agencies are not permitted to require applicants to disclose the citizenship or immigration status of family or household members who are not applying to get themselves health coverage.
Information that the applicants and beneficiaries provide will not be used for immigration enforcement purposes.
Conclusion
There are several avenues to access healthcare coverage, but not without barriers. To be eligible for most programs, applicants must hold a ‘qualifying status.’ These statuses vary from program to program and, depending on which category a person falls into, there may be additional eligibility requirements. It can all turn very complicated, confusing, and unattainable quickly. What is clearly absent from this muddled framework is an acknowledgment that people don’t seek health insurance or coverage for their best day—it is something that is intentionally designed to protect and assist people who are experiencing a hardship. Despite these goals, the system is viciously difficult to access.
The victory of April 2021, when the General Assembly removed the work requirement from Virginia Medicaid, must be balanced against the barriers that remain. It is a benefit that this work requirement is removed. It is also true, however, that benefit is fixed to a limited population of people who need access to this coverage, while sidelining and ignoring huge groups of others who need it just as badly. The tables above list the qualifying statuses for each pathway available in Virginia. The path to coverage that a person follows likely will be highly determined by the status that they hold, time in the U.S. or Virginia, ability to pay, and for what kinds of services they are seeking coverage. Often, if someone does hold a qualifying status, there will be only one or two options for them to consider. Although these options may chip away at the edges of the need for coverage, there is still much work to be done to improve immigrants’ access to healthcare coverage in Virginia and across the United States.
This blog post is not a substitute for legal advice and should not be used to determine health care coverage eligibility. Consult with an attorney regarding your individual circumstances. Click here for a link to the Virginia State Bar’s Lawyer Referral Service.
William & Mary Law School Immigration Clinic Blog 