For questions/clarification, contact your attorney and/or H2a association provider for assistance. Employees with questions can contact their local legal services provider.

They can also contact :

Julie C. Suarez
Associate Dean for
Governmental & Community Relations
Office of the Dean
126 State Street Suite 200
Albany, NY 12207

College of Agriculture and Life Sciences
Cornell University
Office 518-434-4157 | Cell 518-728-6061
JCS433@cornell.edu | cals.cornell.edu

Hi all;

While I've been waiting for a more official response to be forwarded from a few of our state and federal regulatory partners, I thought it wise to share the following resources on the issue of H2a employment, public charge/benefits, and health insurance in the meantime. If/when we see further regulatory guidance, I'll be sure to forward that along. In the meantime, please do feel free to forward.

The information below has been provided by several legal services organizations as well as immigration law attorneys, but is not legal advice and if in doubt, contact your attorney and/or H2a association provider for assistance. Employees with questions can contact their local legal services provider.

Below please find information regarding the Department of Homeland Security regulations and admissibility of H2a workers in subsequent years, as well as information regarding H2a employees and health insurance.

Note the original question comes from whether or not a NYS issued card entitled "my benefits" would deny an H2a worker re-entry into this country in subsequent years. The regulations below indicate that the Department of Homeland Security would not in fact deny an H2a worker re-entry from possession of a "my benefits" card as the benefit included is health insurance which is excluded from the definition of a public benefit.

Communicating this message with your employees before they leave for the season to ensure that they also understand that health insurance is not a benefit constituting a public charge would be wise so that issues are not raised during the interview process next year if the screening officer asks about whether or not the employee received public benefits the previous year.

Homeland Security regulations on how public benefits and programs are defined for inadmissibility purposes, specifically 8 CFR 212.105(b)(4), among other regulations:

§ 212.105 Are there any forms of public assistance that I can receive without becoming inadmissible as a public charge if I should later apply for a visa, admission, or adjustment of status?

(a) The only benefits that are relevant to the public charge decision are public cash assistance for income maintenance and institutionalization for long-term care at Government expense. Institutionalization for short periods for rehabilitation purposes will not be considered. Non-cash public benefits are not considered because they are of a supplemental nature and do not demonstrate primary dependence on the Government.


(b) Although it is not possible to list all of the non-cash public benefits that will not be considered, you will not risk being found inadmissible as an alien likely to become a public charge by receiving non-cash benefits under the following programs or benefit categories:


(4) Health insurance and health services (other than public benefits for costs of institutionalization for long-term care), including, but not limited to, emergency medical services, public benefits for immunizations and for testing and treatment of symptoms of communicable diseases, and use of health clinics;

(available at: https://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-54070/0-0-0-56200/0-0-0-56785/0-0-0-56933.html)

Additional information regarding H2a employee eligibility for health insurance under the Affordable Care Act, as well as eligibility (or non-eligibility) for other assistance benefits can be found in the links below from the US Department of Health Healthcare.gov website, as well as a fact sheet from the National Immigration Law Center, which is a non-governmental organization.
https://www.healthcare.gov/immigrants/immigration-status/

https://www.nilc.org/issues/health-care/lawfullypresent/

H2a employees are considered to be nonimmigrant visa holders, as defined above, and are eligible for health insurance under the Affordable Care Act unless an exemption condition is met. Unless exempted, H2a employees are liable for the tax provisions under the Affordable Care Act. An explanation on exemptions from minimum essential coverage can be found here: https://www.irs.gov/affordable-care-act/individuals-and-families/aca-individual-shared-responsibility-provision-exemptions

A few additional resources are linked here:

https://www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers

https://www.irs.gov/individuals/international-taxpayers/foreign-agricultural-workers

https://www.irs.gov/affordable-care-act/individuals-and-families/aca-individual-shared-responsibility-provision-exemptions

For a non-governmental organization's fact sheet on eligibility for health care for H2a workers, the link below is handy:
http://www.farmworkerjustice.org/sites/default/files/Brief_ACA_H2A_FAQ%202016.pdf

H2a employees should not be eligible for SNAP, as defined in the links below, and should not be enrolled in such. If an H2a employee makes an application for SNAP, eligibility would be denied at the time of receipt of application to the relevant agency. It does not seem that the act of applying constitutes a public charge.

https://www.fns.usda.gov/snap/snap-policy-non-citizen-eligibility

https://otda.ny.gov/programs/snap/SNAPSB.pdf

Most importantly, please find below a sample application from the Department of State that does provide the basis of many questions asked during the screening process. Health insurance would not be defined as part of a public benefit leading to a public charge.
https://travel.state.gov/content/dam/visas/images/DS-160_Example.pdf

The National Immigration Law Center, a non-governmental organization, has good articles explaining the issues surrounding public charges/benefits and employment of immigrants on visas. You can read the two articles linked below:
https://www.nilc.org/wp-content/uploads/2015/12/public-charge-overview-2013-10-01.pdf

https://www.nilc.org/issues/economic-support/overview-immeligfedprograms/

I hope this information is helpful towards explaining the complicated issues surrounding a public charge and re-admission. Given the Department of Homeland Security regulations on the topic, acceptance of health care benefits should not be a barrier to re-entry, despite the term "my benefits" on the issued health insurance card. H2a employees with insurance are required to cancel the insurance when leaving the country, so you may wish to remind them of that as well in addition to a friendly reminder about remembering to file taxes.

Best regards, Julie.

Julie C. Suarez
Associate Dean for
Governmental & Community Relations
Office of the Dean
126 State Street Suite 200
Albany, NY 12207

College of Agriculture and Life Sciences
Cornell University
Office 518-434-4157 | Cell 518-728-6061
JCS433@cornell.edu | cals.cornell.edu