Wednesday, February 5, 2014

Affordable Care Act and Immigrants



I am reproducing below article from Healthcare.gov, which I thought gave a good insight on how the Federal Affordable Care Act impacts immigrants.  Another more specific article detailing covered legal statuses and the documentation is also incorporated herein. The Open enrollment for Marketplace coverage ends March 31, 2014. The next proposed open enrollment period is November 15, 2014 - January 15, 2015.

Lawfully present immigrants and private insurance
In order to buy private health insurance through the Marketplace, you must be a U.S. citizen or be lawfully present in the United States. The term “lawfully present” includes immigrants who have:
    “Qualified non-citizen” immigration status without a waiting period
    Humanitarian statuses or circumstances (including Temporary Protected Status, Special Juvenile Status, asylum applicants, Convention Against Torture, victims of trafficking)
    Valid non-immigrant visas
    Legal status conferred by other laws (temporary resident status, LIFE Act, Family Unity individuals)
Lawfully present immigrants and lower costs
If you’re a lawfully present immigrant, you can buy private health insurance on the Marketplace. You may be eligible for lower costs on monthly premiums and lower out-of-pocket costs based on your income.
    If your annual income is 400% of the federal poverty level or below: Lawfully present immigrants with estimated 2014 household incomes up to 400% of the federal poverty level (about $45,960 for an individual or $94,200 for a family of 4) may be eligible for tax credits that can be used immediately to reduce monthly premiums for insurance bought in the Marketplace.
    If your annual household income is below 100% federal poverty level: Lawfully present immigrants with estimated 2014 household income under 100% of the federal poverty level (about $11,490 for an individual or $23,550 for a family of 4), who are not otherwise eligible for Medicaid, will be eligible for tax credits and lower out-of-pocket costs for private insurance through the Marketplace if they meet all other eligibility requirements.
Immigrant access to Medicaid and CHIP
Immigrants who are “qualified non-citizens” are generally eligible for Medicaid and Children’s Health Insurance Program (CHIP) coverage, if they are otherwise eligible for Medicaid and CHIP in the state (in other words, if they meet their state’s income eligibility rules).
The term “qualified non-citizen” includes:
    Lawful Permanent Residents (LPR/Green Card Holder)
    Asylees
    Refugees
    Cuban/Haitian entrants
    Paroled into the U.S. for at least one year
    Conditional entrant granted before 1980
    Battered non-citizens, spouses, children, or parents
    Victims of trafficking and his or her spouse, child, sibling, or parent or individuals with a pending application for a victim of trafficking visa
    Granted withholding of deportation
    Member of a federally recognized Indian tribe or American Indian born in Canada
In order to get Medicaid and CHIP coverage, under current law most LPRs or green card holders have a 5-year waiting period. This means they must wait 5 years after receiving “qualified” immigration status before being eligible for Medicaid and CHIP. There are also exceptions -- LPRs who don’t have to wait 5 years -- such as people who used to be refugees or asylees.
States may remove the 5-year waiting period and cover lawfully residing children and/or pregnant women who are otherwise eligible for Medicaid. A child or pregnant woman is “lawfully residing” if lawfully present and otherwise eligible for Medicaid or CHIP in the state (including being a state resident).
This option to provide Medicaid coverage to lawfully residing children and/or pregnant women without a 5-year waiting period is already in effect in 25 states, plus the District of Columbia and the Commonwealth of the Northern Mariana Islands. Twenty of these states have chosen to cover lawfully residing children or pregnant women in CHIP. Find out if your state has this option in place. People who don’t have eligible immigration status and therefore aren’t eligible for Medicaid may get Medicaid coverage for limited emergency services, if they meet all other Medicaid eligibility criteria in the state.
Applying for Medicaid or CHIP, or getting help with health insurance costs in the Marketplace, does not make someone a “public charge.” It will not affect someone’s chances of becoming a Lawful Permanent Resident or U.S. citizen. The one exception is for people receiving long-term care in an institution at government expense. These people may face barriers getting a green card.
Mixed status families’ options for care and coverage
Many immigrant families are of “mixed status,” with members having different immigration and citizenship statuses. Some families may have taxpaying members who can’t buy health insurance through the Marketplace, alongside other family members who are eligible to use the Marketplace as citizens or lawfully present immigrants.
The same situation could apply in a family that has some members who are not eligible for full Medicaid, and others who are eligible for Medicaid or CHIP.
“Mixed status” families can apply for a tax credit or lower out-of-pocket costs for private insurance for their dependent family members who are eligible for coverage in the Marketplace or for Medicaid and CHIP coverage. Family members who aren't applying for health coverage for themselves won't be asked if they have eligible immigration status.
Disclosure of immigration status
Federal and state Marketplaces and state Medicaid and CHIP agencies can’t require applicants to provide information about the citizenship or immigration status of any family or household members who are not applying for coverage. States also can’t deny benefits to an applicant because a family or household member who isn't applying hasn’t disclosed his or her citizenship or immigration status.
Generally, Health Insurance Marketplaces and state Medicaid and CHIP agencies can require the disclosure of Social Security Numbers (SSNs) only for applicants, recipients of benefits, and certain people whose income is needed for computing tax credits.
States can ask other non-applicants for an SSN but only if they clearly indicate that providing this information is voluntary, and if they explain how the information will be used. States can’t deny benefits because the applicant doesn’t provide the SSNs of people who aren’t applicants for benefits or recipients of Medicaid or CHIP benefits, or those not required to provide SSNs.
Federal and state Marketplaces and state Medicaid and CHIP agencies verify application information through a “data services hub.” The hub allows the Marketplace and Medicaid and CHIP to securely submit application information. The federal government sends information back to verify the data.
The Department of Health and Human Services and other federal agencies apply privacy and security standards to govern the use and transfer of this information. Applications for the Marketplace and Medicaid and CHIP ask only for the information needed to determine eligibility for health coverage. People who aren’t seeking coverage for themselves won’t be asked about their immigration status.
Information provided by applicants or beneficiaries won’t be used for immigration enforcement purposes.
Additional information for immigrant families
Federally-funded health centers, which are community-based organizations that serve populations with limited access to health care, are required to provide primary health care services to all residents, including immigrant families, in the health center’s service area.
States may choose to provide insurance coverage to additional immigrant populations. About one-third of states offer health coverage using state-only funds to other non-citizens who don’t meet federal definitions.
Undocumented immigrants aren’t eligible for federal public benefits through the Affordable Care Act. For example, undocumented immigrants can’t buy coverage through the Marketplace. Premium tax credits aren’t available for undocumented immigrants.
Undocumented immigrants may continue to buy coverage on their own outside the Marketplace and can get limited services for an emergency medical condition through Medicaid, if they are otherwise eligible for Medicaid in the state. Undocumented immigrants aren’t subject to the individual shared responsibility requirement.


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Following is a list of immigration statuses that qualify for Marketplace coverage.
    Lawful Permanent Resident (LPR/Green Card holder)
    Asylee
    Refugee
    Cuban/Haitian Entrant
    Paroled into the U.S.
    Conditional Entrant Granted before 1980
    Battered Spouse, Child and Parent
    Victim of Trafficking and his/her Spouse, Child, Sibling or Parent
    Granted Withholding of Deportation or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT)
    Individual with Non-immigrant Status (includes worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
    Temporary Protected Status (TPS)
    Deferred Enforced Departure (DED)
    Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) is not an eligible immigration status for applying for health insurance)
    Lawful Temporary Resident
    Administrative order staying removal issued by the Department of Homeland Security
    Member of a federally-recognized Indian tribe or American Indian Born in Canada
    Resident of American Samoa
Applicant for any of these statuses:
    Temporary Protected Status with Employment Authorization
    Special Immigrant Juvenile Status
    Victim of Trafficking Visa
    Adjustment to LPR Status
    Asylum*
    Withholding of Deportation or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT)*
*Only those who have been granted employment authorization or are under the age of 14 and have had an application pending for at least 180 days are eligible
With Employment Authorization:
    Registry Applicants
    Order of Supervision
    Applicant for Cancellation of Removal or Suspension of Deportation
    Applicant for Legalization under IRCA
    Legalization under the LIFE Act
Documentation
To support Marketplace applications, the following documents may be required or used, depending on the individual situation:
    Permanent Resident Card, “Green Card” (I-551)
    Reentry Permit (I-327)
    Refugee Travel Document (I-571)
    Employment Authorization Card (I-766)
    Machine Readable Immigrant Visa (with temporary I-551 language)
    Temporary I-551 Stamp (on passport or I-94/I-94A)
    Arrival/Departure Record (I-94/I-94A)
    Arrival/Departure Record in foreign passport (I-94)
    Foreign Passport
    Certificate of Eligibility for Nonimmigrant Student Status (I-20)
    Certificate of Eligibility for Exchange Visitor Status (DS2019)
    Notice of Action (I-797)
    Document indicating membership in a federally recognized Indian tribe or American Indian born in Canada
    Certification from U.S. Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR)
    Office of Refugee Resettlement (ORR) eligibility letter (if under 18)
    Document indicating withholding of removal
    Administrative order staying removal issued by the Department of Homeland Security
Alien number or 1-94 number


Source:

Tuesday, November 5, 2013

Non-Competes in this LinkedIn World!




A profile update on LinkedIn informing those in network about the person’s new job profile became a cause of action in a lawsuit against the person for infringement of non-compete juxtaposing announcement/update to solicitation to targeted audience, which was prohibited by Non-Compete.  A good tactic to inform about your new position to targeted audience without personally contacting them, which would otherwise have been prohibited by Non-Compete.

In the case in Massachusetts, a recruiting consultant allegedly entered into a written Employee confidentiality and non-Compete agreement prohibiting solicitation, recruiting or hiring other Company employees apart from other things for a period of one year after leaving. The employee after leaving employer updated her profile on LinkedIn informing her 500+ contacts of her new employer, current title and contact information. A Massachusetts Court Judge in his Order dated October 24, 2013, held that a mere announcement or a job update is not a Solicitation hence no breach of non-compete. 
                                                                                   

Sunday, October 27, 2013

Series LLC-Companies within a Company!



A series LLC (“SLLC”) is basically multiple entities within one company and each entity has its own identity and existence. So if you are an investor, instead of having multiple entities for multiple properties, you could have a one series LLC and each component within Series LLC could each own a property without having to go through forming multiple entities. Each Series within a company can have its own business purpose, own assets, separate liabilities and need not even have same members for all Series all this comes with the protection of limited liability for each individual Series i.e. each component within a Parent Series, LLC has same advantages of an LLC without having to waste resources on forming separate LLC’s. A series has the power to: (1) sue and be sued, (2) contract, (3) hold title to assets of the series, and (4) grant liens and security interests in assets of the series[1]. Members and Managers also enjoy limited liability of the parent Series LLC and its each individual Series within the parent Series LLC[2]

 In Texas Series LLC’s are relatively new, since September 2009 codified under Bus. Org. Code Subchapter M, §101.601-§101.621. For a Series LLC’s to be enforceable as intended it must strictly adhere to some basic requirements stated in Bus. Org. Code § 101.602[3] namely that Certificate of Formation and the Company Agreement must contain Notice of limitation of liability of Series and there must be separation of accounts of each Series.

Traditional LLC
Owns one property


Series LLC

Series A
Owns one property

Series B
Owns one property

Series C
Owns one property

Series D
Owns one property

Series E
Owns one property



Not many people know about it and those who do know are skeptical since it is not very much tested. Series LLC’s may be new in Texas but States like Delaware whose model Texas adopted, have had it since 1996.  The skepticism is understandable. There is not much case law on how things will be handled if one series goes bankrupt, how do we handle the taxes, does each series gets its own EIN number, since not all States have provision for Series LLC, how will that Jurisdiction treat Texas LLC?  Most of these issues are resolved if you just consider each component as an entity in itself which concurs with the stand taken by IRS. This will mandate you to have an EIN for each, file separate taxes, maintain separate records etc.  As far as doing business in Jurisdictions which do not have provision for Series LLC, a Series LLC which is well organized and maintained I do not see it as an issue however to avoid undesired consequences if you do business beyond Texas and other States that have provisions for Series LLC[4], you may want to refrain from forming Series LLC and just stick to a traditional LLC.

The popularity of Series LLC is growing.  More recently D.C. has also adopted a provision for Series LLC. Further a Series LLC can wind up individual series without winding up parent LLC or any other Series. A Series LLC is a great tool for having multiple investments under one umbrella without the added cost of forming multiple companies at the same time enjoying benefits of insulation of each investment.


****The information in this column is not intended as legal advice but to provide a general understanding of the law. 




[1] Bus. Org. Code § Sec. 101.605.  GENERAL POWERS OF SERIES.  A series established under this subchapter has the power and capacity, in the series' own name, to:
(1)  sue and be sued;
(2)  contract;
(3)  hold title to assets of the series, including real property, personal property, and intangible property; and
(4)  grant liens and security interests in assets of the series.
[2] Bus. Org. Code § Sec. 101.606.  LIABILITY OF MEMBER OR MANAGER FOR OBLIGATIONS; DUTIES.  (a)  Except as and to the extent the company agreement specifically provides otherwise, a member or manager associated with a series or a member or manager of the company is not liable for a debt, obligation, or liability of a series, including a debt, obligation, or liability under a judgment, decree, or court order.
(b)  The company agreement may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person associated with a series has to:
(1)  the series or the company;
(2)  a member or manager associated with the series; or
(3)  a member or manager of the company.
[3] Sec. 101.602.  ENFORCEABILITY OF OBLIGATIONS AND EXPENSES OF SERIES AGAINST ASSETS.  (a) Notwithstanding any other provision of this chapter or any other law, but subject to Subsection (b) and any other provision of this subchapter:
(1)  the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to a particular series shall be enforceable against the assets of that series only, and shall not be enforceable against the assets of the limited liability company generally or any other series; and
(2)  none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the limited liability company generally or any other series shall be enforceable against the assets of a particular series.
(b)  Subsection (a) applies only if:
(1)  the records maintained for that particular series account for the assets associated with that series separately from the other assets of the company or any other series;
(2)  the company agreement contains a statement to the effect of the limitations provided in Subsection (a); and
(3)  the company's certificate of formation contains a notice of the limitations provided in Subsection (a).
[4] Apart from Texas, U.S. States and territories where a Series LLC can be formed:
    Delaware
    District of Columbia
    Illinois
    Iowa
    Kansas
    Minnesota
    Nevada
    North Dakota
    Oklahoma
    Tennessee
    Utah
    Wisconsin
    Puerto Rico
    Washington, D.C