16 Del. Admin. Code § 14000-14310

Current through Register Vol. 28, No. 7, January 1, 2025

Section 14000-14310 - Qualified Aliens

A qualified alien is:

a) An alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act (INA).

b) A refugee who is admitted to the United States under § 207 of the INA.

c) An alien who is granted asylum under § 208 of the INA.

d) An alien whose deportation is being withheld under §243(h) of the INA or §241(b)(3) of the INA.

e) An alien who is paroled into the United States under §212(d)(5) of the INA for a period of at least 1 year.

f) An alien granted conditional entry pursuant to §203(a)(7) of the INA as in effect before April 1, 1980.

g) Honorably discharged veterans and aliens on active duty in the U.S. armed forces and the spouse or unmarried dependent children of a veteran or active duty serviceman. The discharge must not be due to alien status and the active duty status must not be for training. For example, the 2 weeks of active duty training usually required of members of the National Guard does not meet the definition of active duty. Hmong and other Highland Lao veterans who fought on behalf of the Armed Forces of the U.S. during the Vietnam conflict and who have lawfully been admitted for permanent residence are considered veterans.

h) An alien granted status as a Cuban and Haitian entrant (as defined in Section 501(e) of the Refugee Education Assistance Act of 1980).

i) An alien admitted to the U.S. as an Amerasian immigrant pursuant to Section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988.

j) Aliens who have been subjected to battery or extreme cruelty and who meet certain criteria, including an alien whose child has been battered or an alien child whose parent has been battered.

k) An American Indian born in Canada who is at least one-half American Indian blood and to whom the provisions of § 289 of the INA apply or who is a member of an Indian tribe under section 4(e) of the Indian Self-Determination and Education Assistance Act.

l) Victims of trafficking under the Trafficking Victims Protection Act of 2000 including certain family members of victims of a severe form of trafficking.

m) Iraqi and Afghan special immigrants under The Department of Defense Appropriations Act of 2010. These immigrants are treated in the same manner as refugees.

13 DE Reg. 1540 (06/01/10)

14310.1 Five Year Bar

Unless specifically exempt, qualified aliens who enter the U.S. on or after August 22, 1996, are subject to a five-year bar from Medicaid. While subject to the five-year bar from full Medicaid, a qualified alien may be eligible for emergency services and labor and delivery only.

13 DE Reg. 1540 (06/01/10)

14310.2 Aliens Exempt from Five Year Bar

The following qualified aliens are exempt from the five-year bar:

·	Refugees (§ 207 of INA)

·	Asylees (§ 208 of INA)

·	Aliens who have had deportation withheld under §243(h) or §241(b)(3) of the

·

INA

·	Honorably discharged veterans and aliens on active duty in the U.S. armed forces

·	and the spouse or unmarried dependent children of a veteran or active duty serviceman.

·	Cuban and Haitian entrants

·	Amerasians

·	An American Indian born in Canada, Mexico or who is a member of an Indian

·	tribe under section 4(e) of the Indian Self-Determination and Education Assistance Act

·	Victims of trafficking

·	Iraqi and Afghan special immigrants

·	Legal permanent residents (LPR) who first entered the U.S. under an exempt

·	category (such as refugee, asylee, Cuban/Haitian entrant) and later converted to LPR

In addition, title IV-E Foster Children and Adoption Assistance children may be found eligible for Medicaid regardless of the date of entry provided the foster or adoptive parent of the child is also a qualified alien or a citizen. The IV-E agency is responsible for making that determination about the parent. If a IV-E payment is being made on behalf of the child, then the child is deemed eligible for Medicaid.

13 DE Reg. 1540 (06/01/10)

14310.3 Date of Entry before August 22, 1996

An alien who entered the U.S. before August 22, 1996, and obtained qualified alien status before that date, may be found eligible for full Medicaid benefits.

An alien who entered the U.S. before August 22, 1996, but obtained qualified alien status on or after that date, is not subject to the five-year bar provided the alien remained continuously present in the U.S. from the latest date of entry prior to August 22, 1996, until becoming a qualified alien. This also applies to aliens who entered the U.S without proper documentation or those who overstayed their visa.

Any single absence from the U.S. of more than 30 days, or a total aggregate of absences of more than 90 days, is considered to interrupt continuous presence. For most legal entrants, the United States Citizenship and Immigration Services (USCIS) maintains a record of arrivals to and departures from the U.S. Verification of continuous presence may be obtained by filing Form G-845 and Form G-845-Supplement with the USCIS. For some legal entrants, such as Canadian and Mexican border crossers, and for illegal entrants, the USCIS does not maintain an arrival and departure record. These aliens must provide proof of continuous presence, such as tax returns, employment records, or rent receipts.

Once an immigrant has obtained qualified alien status, he or she does not have to remain continuously present in the U.S.

13 DE Reg. 1540 (06/01/10)

14310.4 Date of Entry on or after August 22, 1996

An alien who entered the U.S. on or after August 22, 1996, is not eligible for full Medicaid benefits for five years. The alien may be eligible for emergency services and labor and delivery only. The five-year bar begins on the date the immigrant obtains qualified alien status.

13 DE Reg. 1540 (06/01/10)

16 Del. Admin. Code § 14000-14310

13 DE Reg. 1540 (06/01/10)