5011-5        FIVE YEAR BAR

Unless specifically exempt, aliens who enter the United States on or after August 22, 1996, are subject to a five-year bar from Medicaid.  While subject to the five-year bar from regular Medicaid, a qualified alien may be eligible for treatment of emergency medical conditions in accordance with Section 5600.

When the five-year bar begins depends upon the date the alien physically entered the U.S.  Aliens who arrived before August 22, 1996 may not be subject to the five-year bar.  Apply the five-year bar as follows:

5011-5 A.   QUALIFIED ALIEN ARRIVING ON OR AFTER 8/22/96

An alien who physically arrived and was lawfully admitted to the United States on or after August 22, 1996, must be evaluated for qualified alien status.  If the alien was admitted as a qualified alien, the five-year bar starts from the date the alien physically arrived.  

5011-5 B.   NON-QUALIFIED ALIEN ARRIVING ON OR AFTER 8/22/96

A non-qualified alien who physically arrived in the United States on or after August 22, 1996, must obtain qualified alien status before the five-year bar begins.  The five year bar begins on the date the non-qualified alien obtains qualified alien status, not the date they physically entered the U.S.

5011-5 C.   ALIEN ARRIVING BEFORE 8/22/96

An alien who physically arrived in the United States before August 22, 1996, but obtained qualified alien status on or after that date is not subject to the five-year bar as long as he or she remained continuously present in the U.S.  Any single absence from the United States of more than 30 days, or a total aggregate of absences of more than 90 days, is considered to interrupt continuous presence.  However, once an immigrant obtains qualified alien status, he or she does not have to remain continuously present in the United States in order to avoid application of the five-year bar.  This rule also applies to aliens who entered the country without proper documentation and those who overstayed their visa.

For most legal entrants, the U.S. Citizenship and Immigration Services (USCIS) maintains a record of arrivals to and departures from the country.  Verification of continuous presence may be obtained for most legal entrants by filing Form G-845 and Form G-845-Supplement with the USCIS.  

The USCIS does not maintain an arrival and departure record for some entrants, such as Canadian and Mexican border crossers, and illegal entrants.  In this situation, the alien must submit proof of his or her claimed date of entry and documentation showing proof of continuous presence, such as a letter from an employer or series of pay stubs or utility bills in the immigrant’s name.

5011-5 D.   ALIENS EXEMPT FROM THE FIVE-YEAR BAR

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

1. Refugees under Section 207 of the INA Immigration and Nationality Act.
    

2. Asylees under Section 208 of INA Immigration and Nationality Act.
    

3. Aliens whose deportation has been withheld under Section 243(h) of the INA Immigration and Nationality Act or whose removal was withheld under section 241(b)(3) of the INA Immigration and Nationality Act.
    

4. Cuban and Haitian entrants.
    

5. Aliens admitted to the U.S. as an Amerasian immigrant.
    

6. Qualified aliens who are honorably discharged U.S. military veterans, active-duty military, and their spouses (including a surviving spouse who has not remarried), and unmarried dependent children (including dependent stepchildren).

Note:  

Hmong and other Highland Lao tribal people who fought on behalf of the Armed Forces of the United States during the Vietnam conflict and who have been lawfully admitted to the U.S. as permanent residents are considered veterans exempt from the five-year bar under this paragraph.

7. Victims of trafficking under section 107 (b)(1) of the Trafficking Victims Protection Act of 2000 (including certain family members of victims of a severe form of trafficking).
    

8. Legal permanent residents who first entered the country under an exempt category (i.e. as a refugee, asylee, Cuban or Haitian entrant, trafficking victim, or alien whose deportation was being withheld) and who later converted to legal permanent resident status.
    

9. Members of a Federally recognized Indian tribe, as defined in 25 U.S.C. 450b(e).
    

10. American Indians born in Canada under §289 of the Immigration and National Act.