Will receipt of COVID-19 stimulus, unemployment benefits or other benefits make you inadmissible under the Public Charge Rule?

 

On Feb. 24, 2020, U.S. Citizenship and Immigration Services (USCIS) implemented a new rule, the Inadmissibility on Public Charge Grounds rule (for ease of reference, the “Public Charge Rule”).  The  Public Charge Rule provides a list of factors to be considered by USCIS when determining whether someone is likely at any time in the future to become a public charge. If such a finding is made, the applicant is inadmissible under section 212(a)(4) of the Immigration and Nationality Act and ineligible for admission or adjustment of status/permanent residence.

Importantly, the Public Charge Rule applies to those individuals who are applying for permanent residence (and certain non-immigrants) but does not apply to U.S. citizens or individuals whom Congress exempted from the Public Charge Rule, such as refugees or asylees.

A list of public benefits that cause negative public charge determinations are specifically listed and defined in 8 C.F.R. 212.21(b) and include, but are not limited to, means-tested programs such as Medicaid and some cash and non-cash programs.

Some of the many questions that COVID-19 has brought to the forefront are: Will receipt of the $1,200 stimulus check be considered a “public benefit”? What about unemployment benefits? Other benefits?

First, the stimulus check: The purpose of the $1,200 stimulus payment for all U.S. taxpayers earning less than $75,000/year is to help them with the financial restraints that COVID-19 has placed on them. The stimulus check will be made available to all taxpayers and families meeting the criteria and, most importantly, receipt of stimulus is not listed in 8 C.F.R. 212.21(b) as a “public benefit”. Thus, there is little doubt that receipt of this benefit will have an impact under the Public Charge Rule.

Second, unemployment benefits: Unemployment benefits are benefits that an employee pays into while employed and, when unemployed, the individual can draw on those benefits. Importantly, USCIS is clear on this and has indicated that receipt of unemployment benefits will be counted as “other income” (Form I-944 Instructions) for purposes of satisfying the requirements of public charge. In other words, no, unemployment benefits will not count against you in a public charge determination.

Thirdly, what about other benefits: As it pertains to COVID-19, USCIS appears to understand the dilemma faced by many applicants and “USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination”. Further, if an individual who is prevented from working or attending school due to social distancing or quarantine orders relies on public benefits for the duration of the COVID-19 outbreak and recovery phase, that individual will be able to submit a statement explaining how he/she was affected by those rules/orders as relevant to the factors considered by USCIS. (https://www.uscis.gov/greencard/public-charge).

Keep in mind that receipt of public benefits is only one consideration among a number of factors over a period of time and no single factor is determinative of inadmissibility under the Public Charge rule.

Lastly, there are many unknowns in these unprecedented times, the answers to which will require further research and perhaps even litigation. For now, stay sheltered, healthy and safe!

Marie E. Wood, Esq., is an associate attorney with Reid & Hellyer, APC, where she practices immigration law as well as business and real estate litigation. She is an advisor to the California Lawyers Association, Real Property Law Section Executive Committee, a founding and board member of the Hispanic Bar Association of the Inland Empire, a board member of the Southwest Riverside County Bar Association, and a member of the American Immigration Lawyers Association, Southwest Inn of Court, Riverside County Bar Association, and North County Bar Association.