Clarifying LPR Status for Obamacare: after POE but still not living in US

[rysa 3]

I haven't really seen this issue covered in the forums, and the FAQs on IRS.gov etc. don't cover what seems to be an edge case from the government perspective. Maybe there is no concrete answer, but we were just curious what your opinions are based on your own experiences so far in navigating these murky waters.

Our CR-1 got approved in Nov 2013 (much faster than we dared to hope given how things were going), turning my husband's Dec 2013 visit into a POE because the visa was on his passport. But he still holds a job in his native country (Germany) and can't quit due to his job contract until April (He is legally required to give 3 months' notice). He therefore has health insurance in Germany and isn't going to be moving-moving here until late April at the earliest. I know we have a 3-month grace period, but we were just wondering whether he's assumed to be a LPR because of the POE and green card despite his continuing physical non-presence in the US. Would we start accumulating the penalty after April 2014 even if he's not actually here? Or, would documenting his continued presence in Germany (e.g., passport entry stamps, employment records, health coverage form for Germany) be sufficient?

Thank you for any input!

[Hypnos 6,578]

He's only an LPR after PoE.

[Boiler 45,965]

To buy he would need to be resident in a US state, he is nor until he moves here.

[rysa 3]

He had his POE in Dec 2013 because the visa came through. So we got the SSN card and the green card, even though he won't move here till April 2014 at the earliest.

[Boiler 45,965]

Not eligible to buy it until he is US resident.

[rysa 3]

OK, so he won't be counted as a resident until it's documented that he has definitely moved here? Just wanting to make sure because in an earlier thread (http://www.visajourney.com/forums/topic/457003-obamacare-new-permanent-residents-required-to-get-health-insurance/) someone addressed Q4 (4, New immigrants often need to leave the US for few months, especially in their first year here, to take care of some final move issues in their home country (property, accounts...) Would they be required to keep paying for health insurance even for those months they are not here?) as not being valid grounds for not having coverage. Our situation is slightly different from that because he hasn't moved here yet, but wasn't sure how strictly US defines LPR status (e.g., "no matter what your passport stamps say, once you had POE and got your greencard, you're counted as LPR").

[Boiler 45,965]

You are confusing issues, he is a LPR.

He is not currently resident. He has to be resident in a US State to buy, he can not buy being resident in Germany.

[rysa 3]

Interesting. As an LPR, he currently has an states-side address, and we already filed federal/state taxes jointly last year. When we signed up on our state's healthcare website, he already showed up as being eligible to buy. We also read that LPR (greencard holders) are in fact required to have qualifying (US) health insurance.

[Boiler 45,965]

He put down his German address?

[rysa 3]

They didn't ask for his address, actually. The way our state's healthcare exchange portal is set up, they asked for a primary contact address, so I put down mine, then they asked for household members. In the process, all they asked for was his name, SSN, immigration status (for which we put down "green card"), etc. No address was ever requested. Then they gave us a summary of what he was and was not eligible for, but we can already purchase silver+ plans.

Edited January 11, 2014 by rysa

[rysa 3]

I'm still looking into this... Since it seems we'll have to file for an exemption directly with IRS, I found this on a redirect from IRS about exemptions to individual shared responsibility provision (8. Is more detailed information available about the individual shared responsibility provision? Yes. The Treasury Department and the IRS have issued final regulations on the new individual shared responsibility provision. ):

C. Exempt Noncitizens

Section 5000A(d)(3) and the proposed

regulations provide that an individual

who is not a citizen or national of the

United States is exempt for a month if

the individual is not lawfully present in

the United States in that month. The

proposed regulations provide that, for

this exemption, an individual who is

not a citizen or national of the United

States is treated as not lawfully present

in the United States for a month in a

taxable year if the individual is either

(1) a nonresident alien as defined in

section 7701(b)(1)(B) for that taxable

year or (2) does not have lawful

immigration status in the United States

(within the meaning of 45 CFR 155.20)

for any day in the month.

Many commentators requested

guidance on how individuals claim the

exemption for being not lawfully

present in the United States and

recommended several reporting

methods for this exemption. The final

regulations do not adopt any of the

recommended reporting methods.

However, guidance on claiming

exemptions will be provided in forms,

instructions, publications, or other

guidance published by the IRS, and

these comments will be considered in

developing that guidance.

Edited January 15, 2014 by rysa

[rysa 3]

After getting bounced around by IRS, being told the exemption must be from the state, and not getting through my state's market helpline for n days//weeks, I finally found they're responding to questions on their facebook page. So I asked about my situation and got this:

Your spouse moving here in April/May would be a qualifying life event, which means he can be added outside of open enrollment. You should be able to enroll him in the first 30 days he is here. It might be easiest for you to work with a Certified Enrollment Counselor or a Certified Agent. There help is free. You may find one on our website - [site] - by clicking on the yellow button "Find Local Help." Also, they don't have to be local. You can call anyone you want. Many of them will help you over the phone.

After exploring this new QLE option (which is presented as a separate thing from the whole info around exemptions from the tax penalty), I wrote back the following (because I'm pretty sure an enrollment counselor or certified agent can't really speak to this issue, but maybe I'm wrong...):

Thank you for the quick response! To clarify, he can already enroll online because he has been issued a green card and social security number. We are therefore concerned that the government will automatically perceive him as being "lawfully present" since he is registered at my address for tax purposes and so forth (but he currently still works in Germany and lives there). We are just trying to ensure that we will qualify for an exemption so as to avoid the tax penalty. This is the point regarding which IRS told us we must inquire directly with state. QLE does not seem to be mentioned in the list for exemptions to the individual mandate (https://www.coveredca.com/FAQs/PDFs/FAQ_Tax_Penalty.pdf). I'm sorry if we sound paranoid, but our case does not seem to fit under available guidelines and I am wary of spending the remainder of this year believing we did the right thing, only to get hit with a tax penalty next year.

Oh well... no response yet...

[rysa 3]

Probably my last update - the state health insurance exchange actually followed up with me voluntarily (on facebook)! Color me amazed.

They asked:

Is your husband currently covered under a group health plan through his job in Germany or under a government-sponsored plan, such as social insurance?

I said:

He has a group health plan through his job in Germany. It is the type considered public insurance in which the services/premiums are regulated by the Federal Ministry of Health (Law-enforced health insurance (Gesetzliche Krankenversicherung)).

They said:

We think your husband should be fine and not subject to the individual shared responsibility and its tax penalties. Keep the following statement handy if you have any issues at tax time. CMS in a sub-regulatory guidance dated 10/31/13 stated: "Pursuant to HHS's authority under Code section 5000A(f)(1)(E), coverage under a group health plan provided through insurance regulated by a foreign government will be recognized as minimum essential coverage for a month with respect to an individual who, for such month, is physically absent from the United States for at least one day of the month." This means that for the months that he lives and works in Germany and has coverage under his group health plan, he will be considered to have minimum essential coverage and therefore will not be subject to the penalties (they need to provide his group health plan information on their 2014 tax return for the months he is covered under that plan in 2014). When he permanently moves to US, he will be eligible for a special enrollment period due to loss of minimum essential coverage (or his employer coverage) at which time, he will have 60 days from the date of the loss of his German health coverage to enroll in a Covered CA plan (or to be added to his wife's plan).

This info is therefore rather specific to nations with some form of universal healthcare, but I hope that helps clarify things for some.

[SusieQQQ 11,587]

Probably my last update - the state health insurance exchange actually followed up with me voluntarily (on facebook)! Color me amazed.

They asked:

Is your husband currently covered under a group health plan through his job in Germany or under a government-sponsored plan, such as social insurance?

I said:

He has a group health plan through his job in Germany. It is the type considered public insurance in which the services/premiums are regulated by the Federal Ministry of Health (Law-enforced health insurance (Gesetzliche Krankenversicherung)).

They said:

We think your husband should be fine and not subject to the individual shared responsibility and its tax penalties. Keep the following statement handy if you have any issues at tax time. CMS in a sub-regulatory guidance dated 10/31/13 stated: "Pursuant to HHS's authority under Code section 5000A(f)(1)(E), coverage under a group health plan provided through insurance regulated by a foreign government will be recognized as minimum essential coverage for a month with respect to an individual who, for such month, is physically absent from the United States for at least one day of the month." This means that for the months that he lives and works in Germany and has coverage under his group health plan, he will be considered to have minimum essential coverage and therefore will not be subject to the penalties (they need to provide his group health plan information on their 2014 tax return for the months he is covered under that plan in 2014). When he permanently moves to US, he will be eligible for a special enrollment period due to loss of minimum essential coverage (or his employer coverage) at which time, he will have 60 days from the date of the loss of his German health coverage to enroll in a Covered CA plan (or to be added to his wife's plan).

This info is therefore rather specific to nations with some form of universal healthcare, but I hope that helps clarify things for some.

Thanks, this is useful information.