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An Overview of Immigrants

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Title: An Overview of Immigrants


1
An Overview of Immigrants the Health Care
System in New York
  • July 2016

2
Objectives
  • Provide a broad overview of different types of
    immigrant status
  • Discuss the impact of immigration status on
    eligibility for other types of government
    benefits
  • Identify ways in which noncitizens can access
    medical care

3
Intro Federal vs. State Benefits
  • The federal government is in charge of all
    immigration benefits Social Security.
  • New York State administers Medicaid (and food
  • stamps, public assistance, etc.). Federal laws
    limit how states can allocate federal funds but
    each state decides who can receive state funds.
  • These systems may intersect, but they are
    fundamentally separate
  • Federal immigration agencies like the Dept of
    Homeland Security (DHS) cannot automatically
    access data from State agencies (e.g., who is
    receiving benefits)
  • An immigration application might qualify a
    patient for NYS Medicaid but not any federal
    benefits like SSI, work authorization, or a green
    card
  • PRUCOL is a NYS benefits category, not a
    federal immigration status

4
Intro Recent Changes to Medicaid / Essential
Plan Enrollment
  • Some noncitizens will be transitioned from
    Medicaid to the Essential Plan permanently
  • Some Medicaid-eligible noncitizens will be
    transitioned from Medicaid to the Essential Plan
    temporarily while DHS (Immigration) confirms
    their lawful presence in the U.S., and then
    transition back to Medicaid if they are not
    Essential Plan-eligible (coverage should be
    seamless)

5
Intro Federal vs. State Benefits
  • 2013 Immigration Customs Enforcement (ICE)
    Memo
  • The ACA requires that individuals seeking
    coverage under a qualified health plan offered on
    a Health Insurance Marketplace or through
    Medicaid, Childrens Health Insurance Program,
    or Basic Health Program provide information
    regarding their immigration status and certain
    information about their household members to
    determine eligibility for such coverage.
  • . . .
  • Under the laws and implementing regulations,
    information provided by individuals for such
    coverage may not be used for purposes other than
    ensuring the efficient operation of the
    Marketplace or administering the program, or
    making or verifying certain eligibility
    determinations, including verifying the
    immigration status of such individuals . . .
  • . . .
  • Consistent with the . . . limitations on the use
    of information provided by individuals for such
    coverage . . . ICE does not use information about
    such individuals or members of their household
    that is obtained for purposes of determining
    eligibility for such coverage as the basis for
    pursuing a civil immigration enforcement action
    against such individuals or members of their
    household.

6
Intro Citizens Aliens
  • Citizens
  • Born in U.S.
  • Born to USC parents living overseas
  • Naturalization
  • LPR for 3/5 years
  • Speak English (or qualify for exception)
  • No disqualifying arrests
  • Refer patients for full screening before applying
  • Aliens (a.k.a., noncitizens)
  • Lawful, e.g.,
  • Lawful Permanent Residents (LPR green
    card)
  • Visa holders
  • Refugees asylees
  • Semi-lawful, e.g.,
  • TPS, DACA, Deferred Action, etc.
  • Unlawful, e.g.,
  • Crossed border without papers
  • Overstayed visa

7
Benefits of U.S. Citizenship
  • Greater access to benefits like SSI
  • Most LPRs do not qualify for SSI unless
  • They have 40 quarters of work history
  • They were lawfully present in 1996
  • More options for sponsoring family members
  • LPRs cannot sponsor married sons/daughters,
    parents, or siblings
  • Relatives of LPRs cannot apply for green cards in
    U.S. they must travel to their home country and
    obtain their green card at U.S. embassy or
    consulate abroad
  • Can spend as much time out of U.S. as desired
  • LPRs who spend more than 6 months per year abroad
    might be considered to have abandoned their
    permanent residence in the U.S.

8
Becoming a U.S. Citizen
  • A lawful permanent resident (LPR) can apply for
    citizenship after being an LPR for 5 years (or 3
    years if obtained green card through marriage to
    USC).
  • Applicants may be exempt from the history and
    civics portion of the interview process based on
    a physical or mental medical condition.
  • A Form N-648 must be completed by a treating
    physician or psychiatrist. A complicated form
    closely scrutinized by DHS.
  • Age, illiteracy, or limited education by
    themselves do no warrant an exemption.
  • 50/20 and 55/15 English Language Exemption
  • 65/20 Civics Test Rule

9
Unlawful / Undocumented / Unauthorized /
Illegal Noncitizens
  • Visa Overstay entered U.S. with nonimmigrant
    visa (tourist, student, guest worker, etc.), but
    did not leave by required date
  • Best case for obtaining green card in future
  • Entry by Fraud entered with fraudulent documents
  • Much harder to obtain green card in future need
    waiver
  • Entered Without Inspection (EWI) crossed
    border without any documents
  • Very hard to obtain green card need waiver and
    must travel to home country to obtain green card
    at embassy

10
Unlawful / Undocumented / Unauthorized /
Illegal Noncitizens
  • Noncitizens in the U.S. unlawfully are subject to
    removal (i.e., deportation)
  • Vast majority will never deported unless they are
    recent entrants or are arrested for crimes (incl.
    DUIs, DV, etc.)
  • U.S. undocumented population 11,000,000
  • In 2015, ICE removed 235,000 noncitizens
  • 70 were removed at/near border or point of entry
  • Only 30 were interior removals of these, 91
    were noncitizens with previous criminal
    conviction(s)

11
Unlawful / Undocumented / Unauthorized /
Illegal Noncitizens Benefits
  • Noncitizens with no lawful status qualify for
    Emergency Medicaid, ADAP, and CHIP ( NYS
    Medicaid if pregnant)
  • Do not qualify for NYS or Federal Medicaid or
    Exchange/BHP
  • MYTH Parents cannot get their papers in the
    future if their family receives public benefits.
    Not true.
  • Undocumented parents can apply for benefits for
    their USC children doing so will not make the
    parents ineligible to apply for any lawful status
    in the future.

12
Lawful Status Nonimmigrants
  • Bona fide nonimmigrants have no intent to stay in
    the U.S. permanently (e.g., students,
    tourists/visitors, guest workers, etc.)
  • Law presumes all entering noncitizens intend to
    stay permanently burden is on nonimmigrant to
    show ties to home country and temporary nature of
    visit
  • Visas can be extended or changed to different
    type of visa (should be done 45 days before
    authorized stay expires)
  • Visitors visa is generally invalid once traveler
    overstays period of authorized stay
  • Student visas

    have different

    rules

13
Nonimmigrant Entry for Medical Treatment
  • No such thing as a medical visa. Individuals
    entering the US for medical treatment come on
    B1/B2 visas as tourists
  • May enter specifically for medical treatment if
  • Disclose need for treatment to embassy or border
    officials and show ability to pay costs of
    treatment or
  • Hospital agrees to pay for treatment (e.g., high
    profile case)
  • Humanitarian Parole
  • Limited form of relief very few ever granted
  • Must demonstrate urgent circumstances
  • Must first be denied nonimmigrant visa
  • Must be outside U.S.
  • Must prove why needed and have affidavit of
    support

14
Health Coverage for Nonimmigrants
  • Individuals with certain valid nonimmigrant
    statuses (no overstays and no violation of terms
    of visa) can qualify for NYS Medicaid and/or
    Exchange/BHP if can also show NY residence
  • Holder of valid B1/B2 visitors visas, by
    definition, generally cannot show NY residence
    (i.e., intent to stay in NY indefinitely)
  • Under NY law, tourists/visitors may qualify for
    Emergency Medicaid
  • Under immigration law, visitors violate their
    tourist visas by accepting Emergency Medicaid
    (working or going to school)
  • Immigration or embassy officials may revoke a
    patients visa or refuse to renew it if
    violation(s) are discovered

15
Lawful Status Immigrants a.k.a., Lawful
Permanent Residents (LPRs)/Green Card Holders
  • Noncitizens who intend to stay in U.S.
    permanently. Includes
  • Family-based green cards (majority)
  • Employment-based green cards
  • Generally cannot obtain if already in the U.S.
    unlawfully
  • Humanitarian-based (asylees, refugees, U visas,
    T visas, SIJ)
  • Diversity Visa lottery winners (from
    underrepresented countries)
  • Green cards are not issued solely for
    medical/health reasons or length of residence in
    the U.S.
  • An LPR can
  • Live and work in the U.S. permanently
  • Travel outside the US (for less than 6 months)
  • Naturalize in 3 or 5 years

16
Relative Petitions Family-Based Immigrants
Visas (Green Cards)
  • Vast majority of green cards are family-based
    U.S. citizens and LPRs can sponsor certain
    relatives in the U.S. or abroad
  • Application has two parts both are significant
    for benefit eligibility determinations
  • Family Relative Petition (I-130)
  • Very simple only need to prove valid family
    relationship
  • Under immigration law, pending or approved I-130
    by itself has almost no benefit (no SSN, no work
    permit, no travel, etc.)
  • Under NY law, person with pending or approved
    I-130 is eligible for NYS Medicaid

17
Immigrants Visas (Green Cards) via
Family-Based Petitions
  • Application for Permanent Residence (Green Card),
    I-485
  • Very complex!!!
  • Many patients cannot proceed with this step
    because
  • Different family members have different
    requirements e.g.
  • Spouse of U.S. citizen can apply for green card
    immediately without having to leave U.S.
  • Sibling of U.S. citizen must wait 12 years to
    apply for green card and must return to home
    country to complete process at U.S.
    consulate/embassy
  • Patient is inadmissible (e.g., entered without
    a visa, committed fraud, has criminal
    convictions, etc.), and they do not qualify for a
    waiver

18
Immigrants Visas (Green Cards) via
Family-Based Petitions
  • Application for Permanent Residence (Green Card),
    cont.
  • Many individuals cannot proceed due to public
    charge issues
  • Public charge likely to become primarily
    dependent on the government for subsistence
  • Family sponsor (or joint sponsor) must meet
    income guidelines to show that they can support
    applicant
  • Individuals institutionalized long-term at
    government expense or dependent on SSI or cash
    assistance will likely be considered public
    charges and denied green cards
  • Most benefits (e.g., regular Medicaid,
    supplemental non-cash or earned benefits like
    SSD, workers comp, food stamps, rental or housing
    assistance, educational loans, etc.), do not make
    people public charges or affect eligibility for
    green cards

19
Immigrants Visas (Green Cards) via
Family-Based Petitions
  • Due to complexity and expense of applying and
    qualifying for a green card, in many cases only
    filing the family petition (I-130) is
    appropriate
  • Done solely for health insurance purposes to make
    patient PRUCOL under NY law and eligible for NYS
    Medicaid (will still not qualify for Exchange,
    BHP, or Federal Medicaid)
  • Under immigration law, patient is still
    undocumented
  • Family members only filing the petition do not
    have to submit any proof of income and will not
    be responsible for supporting patient this is
    only required when a patient applies for a green
    card

20
Other Paths to a Green Card VAWA for Victims of
Domestic Violence
  • VAWA Petition If an undocumented immigrant is a
    victim of domestic violence by a USC or LPR
    spouse or parent, or recently divorced an abusive
    USC or LPR spouse, the undocumented immigrant may
    be able to file a VAWA petition.
  • Marriage must be bona fide (not done for purpose
    of obtaining green card)
  • Immigrant files on own with no knowledge,
    involvement or cooperation by the abuser
  • If VAWA petition granted, immigrant can apply for
    a green card
  • VAWA applicants qualify for NYS Medicaid and
    Exchange/BHP
  • Public charge issue does not apply to VAWA
    applicants

21
Other Paths to a Green Card U Visas for Crime
Victims
  • Victims of certain serious crimes can apply for a
    U visa if
  • They suffered serious mental or physical harm and
  • Assisted law enforcement (police or DA) in
    investigation or prosecution of crime (e.g.,
    called police, didnt refuse to testify in
    court) arrest or conviction is not necessary
  • Police or DA must sign form certifying that crime
    occurred and victim cooperated
  • Unlike VAWA, status of perpetrator is irrelevant
  • U visas capped at 10,000 per year application
    process is very long (3-4 years or longer)

22
Other Paths to a Green Card U Visas for Crime
Victims
  • Immigration benefits of U visa
  • Work permit
  • U visa holders can sponsor children overseas to
    come to U.S.
  • Can apply for green card after 3 years
  • Like VAWA, public charge issue does not apply
  • Cannot travel overseas on a U visa
  • Health coverage for U visa
  • NYS Medicaid while application is pending
  • NYS Medicaid and Exchange/BHP if visa is granted

23
Other Paths to a Green Card Special Immigrant
Juvenile Status (SIJ)
  • SIJ offers protection for undocumented immigrant
    youth who have been abused, abandoned, orphaned
    or neglected in the U.S. or abroad. This special
    status requires that a SIJ applicant be
  • Declared dependent in a juvenile court (in NY
    this means Family Court must take jurisdiction
    over a petition, e.g., custody, guardianship,
    etc.)
  • Under 21 when application is filed
  • Unmarried (though having children is OK)
  • Reunification with one or both of the childs
    parents is no longer a viable option due to
    abuse, abandonment, death or neglect and
  • It is not in the minors best interests to return
    to his/her country of origin
  • If granted SIJ, a minor may be able to apply for
    their own green card superior to DACA! but can
    never sponsor parent(s)

24
Other Paths to a Green Card Asylee Refugee
Status
  • Status available to those who were persecuted in
    past or fear future persecution due to their
    race, religion, nationality, political opinion,
    or membership in a particular social group (e.g.,
    sexual orientation)
  • Refugees are granted status outside the U.S.
  • Asylum-seekers apply for status inside the U.S.
  • Asylum-seekers must apply for asylum within 1
    year of entering the U.S. or may get lesser form
    of relief (withholding of removal)
  • Asylum applicants can apply for work
    authorization after their application has been
    pending for 150 days
  • Asylees can apply for a green card 1 year after
    being granted asylum

25
Semi-Lawful Status
  • A decision to not-deport certain unlawful
    immigrants for humanitarian or policy reasons for
    a certain period of time
  • Generally provides work authorization but no path
    to a green card or citizenship, no sponsorship of
    family members, can travel internationally only
    in very limited circumstances
  • Result from executive actions, not laws can be
    revoked by any President
  • Recipients often qualify for NYS Medicaid, but
    few other state benefits

26
Semi-Lawful Status DACA
  • Deferred Action for Childhood Arrivals, a.k.a.
    Dreamers
  • Result of Executive Action by President Obama
    (could theoretically be revoked by future
    administrations)
  • Not affected by Supreme Court ruling in June 2016
  • DACA recipients may apply for work authorization
    and SSN no path to green card or citizenship
    need special permission to travel
  • Must be renewed every two years (can be
    terminated due to do certain criminal convictions

27
Semi-Lawful Status DACA
  • Applicants must be at least 15 and entered U.S.
    prior to 16th birthday
  • Applicants entered before June 2007recent
    arrivals not eligibleand resided in U.S. since
    June 2012
  • Must have high school diploma, GED, or be
    currently enrolled in classes (Adult Ed, GED
    Prep, ESL, etc.)

28
Semi-Lawful Status TPS
  • Temporary Protected Status is granted to
    individuals from specified countries due to
    temporary conditions like natural disasters,
    disease, or war
  • 300,000 citizens/nationals of 13 different
    countries have TPS
  • Individuals must have entered U.S. prior to
    certain date
  • Is often (but not always) renewed
  • Can be terminated if conditions show improvement
    (e.g., Rwanda and Bosnia) or if bad country
    conditions seem permanent (e.g., Montserrat)

29
Semi-Lawful Status TPS
  • DHS issues notices when TPS for a given country
    is granted or extended and when individuals need
    to re-register
  • Only current re-registration period is for
    citizens of South Sudan (as of July 2016)
  • TPS entitles individuals to work authorization
    and NYS Medicaid, but no path to a green card,
    limited ability to travel, and no way to sponsor
    relatives

30
Semi-Lawful Status Medical Deferred Action
  • Option of last resort wholly discretionary.
    Review of application by DHS can take months or
    years
  • A process by which a patient decides to inform
    USCIS of their presence in the U.S. with a
    request to defer any action against them (i.e.,
    deportation) because of extenuating health
    circumstances/terminal illness and need for
    medical care not otherwise available to them
  • If granted, applicant may qualify for work
    authorization (though many applicants too ill to
    work)
  • LegalHealth generally only files applications
    when benefits gt risk
  • No serious criminal history/immigration fraud
    patient needs medical treatment/services, not
    just custodial nursing home care

31
PRUCOL Permanently Residing Under Color of Law
  • PRUCOL is not an immigration status
  • PRUCOL is New York States benefit eligibility
    category for Medicaid
  • According to the State of New York Department of
    Health Information Letter (08-OHIP/INF-4) The
    term PRUCOL alien refers to an alien who is
    permanent residing in the United States with the
    knowledge and permission or acquiescence of the
    federal immigration agency and whose departure
    from the U.S. the agency does not contemplate
    enforcing. 18 NYCRR 360-3.2(j)(1)(ii)

32
What Is PRUCOL?
  • PRUCOL aliens are deemed immigrant-eligible for
    Medicaid
  • There is no PRUCOL application filed with
    immigration
  • Rather, LegalHealth may file immigration
    applications that can make a patient PRUCOL under
    the NY rules.
  • Applications pending with immigration can still
    make a patient PRUCOL even without an approval.

33
What Makes a Patient PRUCOL?
  • PRUCOL includes noncitizens who have an approved
    or pending application for an immigration status
    or benefit, e.g.
  • Pending application for a green card
  • Approved Relative Petition (I-130) but no green
    application has been filed
  • Aliens who have applied for or been granted
    medical deferred action
  • Aliens who have applied for other immigration
    statuses including
  • - TPS (Temporary Protected Status)
  • - U/T Visa as a victim of a qualifying
    crime/trafficking
  • - VAWA for abused spouses of USCs or LPRs
  • - Stay of Removal/Deportation or under an
    Order of Supervision
  • - Other applications for a permanent/long term
    benefit
  • If an application is approved an individuals
    benefits eligibility might change or remain
    PRUCOL
  • If an application is denied it is harder to argue
    that a patient is PRUCOL

34
How Do You Prove PRUCOL status?
  • Medicaid applicant must provide documentation,
    such as notice from DHS showing the filing or
    approval of an application or petition (often a
    Form I-797, Notice of Action)
  • A letter of receipt from DHS indicating that a
    filing was made and which shows (implicitly) that
    DHS has knowledge of the patients presence in
    the U.S. and no action for deportation
  • Other proof of pending/approved applications

35
How Do You Prove PRUCOL status?
  • Many PRUCOL individuals will have a work
    authorization card with a code that corresponds
    to a category, e.g.
  • C9 pending green card application
  • C33 DACA
  • A12 TPS
  • A19 U Visa
  • Expired card may mean they had a pending
    application (green card, asylum, etc.) in the
    past that was denied and they were unable to
    renew their authorization

36
Other Ways to Determine PRUCOL Status FOIAs
  • If a patient is no longer eligible to apply for a
    benefit and has perhaps filed applications or had
    contact with the Immigration Service in the past,
    it may be possible to obtain records to prove
    PRUCOL status via a Freedom of Information Act
    requests (FOIAs)
  • FOIAs can take 2-6 months
  • FOIAs can be incomplete or hard to obtain if
    records are old or if patient does not remember
    relevant information/dates
  • Depending on the available documents, a patient
    may require additional advocacy by LegalHealth to
    argue that they are PRUCOL

37
Challenges of Establishing or Determining PRUCOL
Status
  • Family members may be unwilling to file petition
    (I-130) because they (incorrectly) fear the
    financial obligations assumed by petitioning
    relatives
  • Often, a patient is simply not eligible for any
    immigration benefit under the current law
  • Patient may have immigration violations,
    including fraud, which render them ineligible for
    any immigration benefit
  • Patient may have a criminal history that render
    them ineligible for an immigration benefit
  • Patient may have past deportation orders that
    foreclose showing government acquiescence to
    presence in U.S.
  • Attorney/Client privilege prevents us from
    revealing problems to the hospital without a
    patients consent

38
Who Is Not PRUCOL?
  • Visitors with valid visitors visas
  • Generally, persons with denied applications for
    benefits
  • Persons with final orders of deportation, unless
    deportation is being deferred/under Order of
    Supervision
  • Persons who never filed for any immigration
    benefit or are ineligible for any immigration
    benefit

39
Emergency Medical Care
  • All New Yorkers, regardless of their immigration
    status and ability to pay, have a right to
    emergency medical treatment, including
  • Medical examination to determine whether a
    medical emergency exists. If determined to be an
    emergency, the hospital must treat and stabilize
    the patient
  • Appropriate interpretation services so patient
    can understand medical treatment

40
What is a Medical Emergency?
  • The patient has a medical condition of
    sufficient severity (including severe pain) and
  • Not getting immediate medical attention could
    result in putting the individuals health in
    serious jeopardy serious impairment to a bodily
    function or serious dysfunction of any bodily
    organ or part.
  • Does not include a serious chronic condition
    unless presenting severe symptoms at the time,
    such as chemotherapy needed to stabilize a
    malignant cancer
  • Up to the physician and the facility to
    characterize the need for treatment as
    necessitating emergency treatment.

41
Non-Emergency Medical Care for Medicaid-ineligible
Noncitizens
  • Several options for uninsured patients to obtain
    non-emergency medical care
  • Public hospitals
  • Hospitals sliding scale or charity care programs
  • Federally funded health clinics
  • Undocumented pregnant women in New York are
    eligible for Medicaid for prenatal and postnatal
    care (PCAP) and WIC.
  • Undocumented children in New York are eligible
    for CHIP B

42
Immigrant Eligibility for Other Benefits
  • Depending on an immigrants status, entry date
    and years in the U.S., the individual may be
    eligible for various federal and state benefits
    such as Social Security Disability or Retirement,
    SSI, Food Stamps or Public Assistance (welfare)
  • Social Security Disability/Retirement benefits
  • Must have a green card and a sufficient
    on-the-books work history
  • Supplemental Security Income (SSI)
  • LPR who were lawfully residing in US before
    8/22/96 or,
  • LPR lawfully residing in US after 8/22/96 who can
    be credited with 40 qualifying work quarters (10
    years, not consecutive)

43
Examples of Eligibility by Program
  • Public Assistance (welfare)
  • Green card holders are immigrant-eligible
  • PRUCOL noncitizens may be eligible in NY for
    Safety Net assistance
  • Food Stamps
  • must have green card for at least 5 year before
    immigrant-eligible (can be shorter if a child or
    disabled). PRUCOL noncitizens are not eligible
    for food stamps

44
Executive Actions on Immigration
  • On November 20, 2014, President Obama announced a
    series of initiatives reflecting the
    administrations immigration enforcement
    priorities
  • Lawsuit put program on hold Supreme Court heard
    arguments on April 20, 2016, and upheld lower
    courts injunction. Program will not proceed at
    this time.
  • There are no applications available patients
    should be wary of rumors and/or legal advice from
    unlicensed practitioners or notarios
  • No further updates expected until outcome of 2016
    elections in November

45
What was Executive Action?
  • Deferred Action a formal grant of
    prosecutorial discretion an agreement to not
    remove an individual from the country for a set
    period of time
  • Confers lawful presence but not a lawful status
  • Can result in work authorization, eligibility for
    Medicaid
  • Will not result in a green card, path to
    citizenship, the ability to petition for family
    members overseas, or the ability to freely travel
    and return to the U.S.

46
Who Would Have Benefited from Executive Action?
  • Expansion of Deferred Action for Childhood
    Arrivals (DACA) to people who
  • Arrived in the U.S. before turning 16
  • Have been present in the U.S. since January 1,
    2010
  • Current DACA deadline is June 15, 2007
  • Can be any age at time of application
  • Current DACA rules exclude anyone who was over 31
    on June 15, 2012
  • Can obtain work authorization for 3 years
  • Current DACA applicants are authorized for 2
    years

47
Who Would Have Benefited from Executive Action?
  • Deferred Action for Parental Accountability
    (DAPA) for
  • Parents of U.S. citizen and lawful permanent
    resident (green card) children who were born on
    or before November 20, 2014
  • Who have been present in the U.S. since January
    1, 2010 recent arrivals not eligible!
  • Applicants with arrests, convictions, past
    immigration violations or orders of
    removal/deportation should speak with an attorney
    before applying

48
Conclusion
  • Immigration is complicated area of law
  • Patients with questions should be referred for
    full intake at LegalHealth clinic
  • LPRs should consider naturalization!
  • Benefits eligibility can vary greatly based on
    whether application is pending or approved, type
    of status, date of entry to U.S., nationality,
    age, disability/health, etc.
  • Patients with questions should be referred for
    full intake at LegalHealth clinic

49
Questions?
  • Sylvia Miller, SMiller_at_nylag.org, (212) 613-7344
  • Staff Attorney, LegalHealth

50
For more information about LegalHealth visit
www.legalhealth.org.
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