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Context

I received a K-1 visa (passing a medical assessment), have entered the USA, and have married. We have sent in the documents to apply for Lawful Permanent Resident status. We are both currently unemployed and living with her parents in Weld County, Colorado. I have no significant long-term health problems.

My wife and I went to a state healthcare advisor to ask about my healthcare options. (I have travel insurance covering emergency care, but nothing else). The advisor asked 'if' we had applied for Medicaid yet and we said we had read I am not allowed to receive it or any kind of benefit. The advisor talked us through insurance options but also suggested a local clinic where the treatment prices were based on a sliding scale for income. We decided to register at this clinic so that we could pay for treatment as we need, rather than paying hundreds a month.

The Care Program

We have received this paperwork for the clinic in preparation for a financial appointment with them this afternoon. Other pages refer to the system as a copay program, and ask for proofs of income etc.

Affidavit for Lawful Presence / Colorado Indigent Care Program (CICP)

I, [name], swear or affirm under penalty of perjury under the laws of the State of Colorado, that (check one):

[tick either US Citizen OR LPR/lawfully present in federal law]

I understand that this sworn statement is required by law because I have applied for a public benefit. I understand that state law requires me to provide proof that I am lawfully present in the United States prior to receipt of this public benefit. I further acknowledge that making a false, fictitious, or fraudulent statement or misrepresentation in this sworn affidavit is punishable [under various laws, etc.]

Square brackets and bold text are mine.

The Question

I know I cannot receive certain government money such as Medicaid. However, as this is a "public benefit", can I receive this?

Because the aforementioned advisor asked if we had already applied for Medicaid, even though I can't, I do not trust that her direction to this copay program means I am allowed to do it.

  • A clinic that offers medical services low-cost with a sliding scale based on income may, indeed, include a public benefit, as it is underwritten with public funds (either from the State alone, as Medicaid is jointly funded by Federal and State funds). In this case, the public benefit may come from State funds and/or the clinic may be billing Medicare/Medicaid. Take care, as filling out the clinic's forms may trigger an assistance request on your behalf. – Giorgio Mar 7 '17 at 16:38
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There are several issues here.

I know I cannot receive certain government money such as Medicaid.

First, it is not true that you cannot receive Medicaid. Nothing legally prevents you from receiving Medicaid if you are eligible according to the state's rules. It is true that you do not currently qualify for Medicaid as you are not yet a permanent resident (except Emergency Medicaid or pregnancy-only Medicaid), and many states do not allow someone on Medicaid for the first 5 years after becoming a permanent resident, but some states do allow someone on Medicaid in the first 5 years of permanent residency.

About your question about "lawfully present", I don't know which definition they are using for this Colorado program, but since this is in the context of health insurance benefits, this may be referring to the same "lawfully present" that determines eligibility to use Obamacare exchanges, and applicability of the individual mandate. This is defined in 45 CFR 152.2; among the many included categories of people is

(vii) Aliens whose visa petitions have been approved and who have a pending application for adjustment of status;

Since you have an approved I-129F petition and have a pending Adjustment of Status, that may count. There is also

(iii) Aliens who have been granted employment authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22), or (24);

so once you get an AOS-based EAD (category (c)(9)), you will also qualify under that.

One issue you might be thinking of is the I-864 Affidavit of Support, which your spouse (and any joint sponsor) signed as part of your Adjustment of Status process. You did not sign the Affidavit of Support and it does not affect what you can do. However, your spouse (and any joint sponsor) who signed it has obligations after you become a permanent resident and before the obligations end, and can be sued, either 1) by you, if they do not supplement your income until it reaches 125% of poverty level, or 2) by the government, for reimbursement if you receive need-based government assistance (as it would mean the sponsor(s) failed to supplement the immigrant's income per the affidavit). The first wouldn't happen unless you really hated them (and even then, you have to sue in federal court and it is expensive to do so); and the second has historically almost never happened, as there have only been one or two reports of states considering suing people, and they quickly abandoned it as it was too expensive to sue in federal court for it to be worth it.

Another thing of concern is deportability for becoming a "public charge". INA 237(a)(5) says that you are deportable if you become a "public charge" within 5 years of entry, unless you can show it was due to causes that arose since entry. Current USCIS and Department of State policy regarding "public charge" is that they will not consider past or future use of non-cash benefits like Medicaid, WIC, Food Stamps, etc. when considering whether someone is likely to become a public charge. However, that may change under the Trump administration. One of the draft executive orders that leaked in January, which has not yet been signed, said to change it so they consider all need-based benefits, not just non-cash benefits. It's not clear whether such a change will mean they will start considering deportability of permanent residents who use need-based benefits.

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