Illegal Aliens and COBRA

HRAMERICA

Question: Upon the review of an I-9 form it was discovered that an allien was illegally working for the employer. The allien had been working for the employer for several years.The allien was subsequently let go from employment. Is the former allien employee entitled to elect COBRA?
Question: His children are American citizens. Are they entitled to elect COBRA?
Question:His spouse is legally situated in the USA. Is she entitled to elect COBRA?

Scott Ruth

On your facts, I think all would be entitled to COBRA. The rule is that
nonresident aliens with no income from a US source are not COBRA qualified
beneficiaries, and neither are their spouse and dependents (who are not also
employees). Although the employee is a nonresident alien because he is here
illegally, he had earned income from a US source (your company) and thus would
be a qualified beneficiary under COBRA. Because the employee is a qualified
beneficiary, so too are his spouse and children. The regulatory citation is
54.4980B-3, Q/A-1(e).

Scott Ruth
Miller & Martin LLP