The Agenda: Could Employers Use Immigrants to Avoid the Health Mandate?

The Agenda

How small-business issues are shaping politics and policy.

In a bid to win conservatives over to the cause of immigration reform, the authors of the Senate bill included a provision that would deny health benefits to illegal immigrants seeking to become legal. Now there is an argument making the rounds that this provision will encourage companies to replace American workers with those newly legalized immigrants.

The immigration reform bill that passed the Senate denies illegal immigrants who embark on the pathway to citizenship — the bill calls them registered provisional immigrants — access to the subsidies for purchasing health insurance available under the Affordable Care Act. Because the new law ties the penalties for employers who offer inadequate health insurance, or none at all, to the subsidies their workers receive, companies whose workers are ineligible for subsidies could avoid those penalties.

“Some employers would face no penalty for failing to provide such workers affordable health coverage,” Jed Graham, a reporter for Investor’s Business Daily, wrote in April. Mr. Graham called this “an incentive of up to $3,000 per year to hire a newly legalized immigrant over a U.S. citizen.” Under the bill, these immigrants would not be entitled to subsidies until they received a green card, which would take 10 years.

Investor’s Business Daily has been opposed to the health insurance overhaul, and ironically enough, this claim seems to have first been embraced by conservatives. But the argument has since made its way across the political spectrum: by June it cropped up in both the New Republic and Mother Jones. You’re The Boss readers repeated the claim in comments to a recent post about small businesses and immigration.

Here’s how it would work — and because the Affordable Care Act’s employer mandate, like everything else about the health care bill, is mind-numbingly complex, so, too, would be such a scheme to circumvent it by hiring newly legal immigrants. The recently postponed mandate, which applies to businesses with at least 50 employees, basically works two ways. (Feel free to consult this handy chart published by the Kaiser Family Foundation.) First, if a company offers no insurance at all, and at least one employee buys individual insurance with a government subsidy, the company must pay a penalty. The penalty equals the total number of employees minus 30 multiplied by $2,000. A company with 50 employees, for example, would pay $40,000. But if this company managed to make sure that all of its lower-paid employees — the subsidies are available to anybody making less than 400 percent of the federal poverty level — were registered provisional immigrants, it would avoid the penalty altogether, because none of them could buy subsidized insurance.

If, on the other hand, the company offers insurance but it does not meet the health law’s minimum standards, or some employees find it unaffordable, then employees are free to buy their own insurance. And for each employee who buys insurance with a taxpayer subsidy, the company must pay a $3,000 penalty — if 10 employees require subsidies, for example, the total penalty is $30,000. (This penalty is not as draconian as it might seem, because it is limited to the amount the company would pay if it offered no insurance at all.) So for every legal immigrant or citizen that a company offering sub-par health benefits replaced with a registered provisional immigrant, the company could save $3,000.

But how realistic is this? To skirt this law, the companies would have to out-and-out violate another: it is illegal to ask applicants about their immigration status — an employer can ask job candidates only if they are authorized to work in the United States.

And, frankly, it is a lot of effort. “Most employers want to focus on their business and not build these complicated schemes,” said Alan Cohen, the chief strategy officer and co-founder of Liazon, which offers employers group health insurance through what it calls a private benefits exchange. But companies that did try this scheme, he added, would enter “a house of cards that can come down on you at any time. And it’s not just the law itself. One little change in guidance and all of a sudden all that work you did, out the window.

“At the end of the day, offering employee benefits is all about attracting good employees. I think every business tries to attract and retain employees at some level. What’s going to happen is people are just not going to work for people who scheme to harm their employees.”

In any event, the prospect of employers ever having the opportunity to take advantage of these provisions seems increasingly remote. For one thing, not only has the administration delayed the effective date of the mandate for a year, but both conservatives and liberals have called for its repeal. And until House Republicans decide to take up the Senate bill, any discussion of registered provisional immigrants on a pathway to citizenship is going to remain academic.

Article source: http://boss.blogs.nytimes.com/2013/07/09/could-employers-use-immigrants-to-avoid-the-health-mandate/?partner=rss&emc=rss