hardship waiver attorney

immigration reform

Big image

hardship waiver attorney

The Deficit Reduction Act (DRA) has had an adverse effect on the Medicaid rules. Particularly, the new gifting rules required by the DRA, the look back period for any gifts or transfers for less than fair market value has been extended from 3 years to 5 years. Also, the penalty for gifts in the previous five years will not begin until the person is eligible and has applied for Medicaid benefits.


This poses a serious problem for Medicaid applicants who have given money to a family member, church or another charity and now require nursing home care. How can they qualify for Medicaid if they have given money away and now cannot afford the nursing home cost of more than $6500.00 per month?


One possible approach is to assert that the gift was for a purpose other than to qualify for Medicaid benefits. In other words, the person gave money away without any Medicaid motive in mind and had no reason to believe that nursing home care might be necessary. An example of this would be that Jim Smith a healthy 60 year old, gives his vacation cottage to his daughter. Shortly thereafter, Mr.Smith suffers serious injuries in an automobile accident which requires 24 nursing home care. This transfer asset would likely not be subject to penalty under the Medicaid rules because Mr.Smith could not have anticipated his need for nursing home care.


Another possible approach to avoiding the penalty for any gifts under the Medicaid rules would be to seek a hardship Waiver.


According to the Medicaid rules, a penalty can be waived if it creates "undue hardship". The Medicaid rules provide that undue hardship exists if the client's physician states that "necessary medicaid care is not being provided" and the person "needs treatment for an emergency medical condition". A medical emergency may result in the person's death or permanent injury to the person's health.


In other words, if it can be established that a Medicaid penalty will cause the nursing home resident to be deprived of necessary medical care and the failure to provide such care will result in death or permanent impairment to one's health, then the Medicaid penalty will be waived. This would presumably require the nursing home to discharge the non-paying resident with no other options available to provide for the person's care.


It is critically important that planning for these cases be done early - well before the filing of the Medicaid application. If a loved one requiring nursing home care has given away money or any other assets including gifts to a church or Charity, it is critical that an experienced elder law attorney review the matter to identify the potential problems and develop a sound strategy before the Medicaid application is filed.




Past crimes can come back to cause serious trouble for you when it comes to obtaining a green card. Some common crimes that become barriers to getting a green card include but are not limited to crimes of moral turpitude, domestic violence, aggravated felonies, prostitution, drugs, marriage fraud, alien smuggling and criminal convictions for two crimes or more whose sentence equates to a total of five or more years in jail. Crimes off moral turpitude may include any such crimes that reflect lack of moral character on part of the applicant. These include theft, stalking, rape, blackmail, arson etc. If you have been convicted of the aforementioned crimes in the past, then getting a criminal waiver is the best course of action for you to take.


There are several types of waivers that you can apply for. The 212(h) waiver is for those who have been convicted of crimes of moral turpitude, possession of Marijuana, multiple convictions, prostitution, criminal vice or serious crimes that involve a grant of immunity. For the waiver to be granted, the applicant must show that the crime they are convicted of happened fifteen years ago, that they have been rehabilitated and no longer pose a national threat. They may also show that they are a direct relative of a U.S. citizen or permanent resident and that denying them admission to the use would cause extreme hardship for the said U.S. citizen or resident. If the prostitution was the sole grounds for inadmissibility, then the applicant must show that they have been rehabilitated and, again, that they aren't a threat to national welfare, safety or security. If the applicant is an abused spouse self-petitioner, even then they may be granted a criminal waiver.


Since grant of the waiver is purely on the immigration judge's discretion, the immigrant must prove that they deserve to be granted the criminal waiver. They must show that they have a strong moral character, their criminal past notwithstanding. A waivable offense does not guarantee that the judge will make a favorable decision, especially if the offense is dangerous or violent. You have to prove that granting of the waiver will not be a threat to national security or that denial of the grant would cause your U.S. states citizen or permanent resident relative extraordinary suffering: this is not an easy standard to meet. In short, a strong case, as well as honesty, are musts when it comes to getting a waiver.


Certain things may make you ineligible for the waiver on the basis of moral character reasons. These include committing, attempting or conspiring to commit or actually admitting to elements of the crimes of torture and murder.



Another type of waiver is available for temporary visa holders i.e. non-immigrant visa waivers. It enables temporary work or visiting visa holders to deal with several grounds for inadmissibility. Yet another type of criminal waiver is present for someone who smuggled or paid for the smuggling of his close relatives into the U.S.





hardship waiver attorney