Effects of Unemployment Benefits and COVID-19 on Public Charge Inadmissibility for Green Cards

Effects of Unemployment Benefits and COVID-19 on Public Charge Inadmissibility for Green Cards

Earlier this year, a nationwide injunction was lifted on the “Public Charge” rule, changing how the Department of Homeland Security determines if an individual is “likely at any time to become a public charge.” Certain nonimmigrant USCIS forms received updates to collect public charge information and green card applicants now have to submit Form I-944 in conjunction with the Form I-485. The Form I-944 is a 18 page form that collects information based on positive and negative factors related to an individual’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay.

The rule does not include benefits used prior to the October 15, 2019 original effective date but the inadmissibility determination is also “prospective in nature” so any duration or amount of public benefits received may be considered in the totality of the circumstances. You should keep careful records of any use of the public benefits described below.

These benefits include but are not limited to:

  • Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
    • Supplemental Security Income (SSI)
    • Temporary Assistance for Needy Families (TANF)
    • Federal, State, or local cash benefit programs for income maintenance or “general assistance”
  • Supplemental Nutrition Assistance Program (SNAP)
  • Section 8 Housing Assistance
  • Section 8 Rental Assistance
  • Medicaid (except for certain emergency conditions, services provided under the Individuals with Disabilities Education Act, school-based services or benefits, benefits received under 21 years of age or a woman during pregnancy)
  • Public housing under section 9 of the U.S. Housing Act

COVID-19 Disaster Relief & Unemployment Benefits

Many individuals are understandably concerned how COVID-19 may affect their current or future green card applications. The good news: unemployment insurance is not listed as one of the benefits included in the public charge consideration. Unemployment benefits are considered “earned benefits” and the final text of the public charge rule states:

DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.”

What benefits are exempted from the public charge rule?

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • Foster care and adoption
  • Student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters
  • Head Start
  • Benefits received by noncitizen members of the U.S. armed forces serving in active duty or in Ready Reserve components (and by service member’s spouse and children)

As noted above, disaster relief and emergency medical assistance are exempted from the public charge rule. USCIS continues to encourage anyone with symptoms of COVID-19 to seek medical treatment or preventive services and confirmed that such treatment or services “will not negatively affect any alien as part of a future Public Charge analysis.” The notice goes on to emphasize that the public charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19:

“To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, 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, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).”   

USCIS also advises that while USCIS is required to consider the receipt of certain cash and non-cash public benefits in a public charge determination, including those that may be used to obtain testing or treatment for COVID-19, individuals affected by the outbreak may submit a statement with their green card applications to provide an explanation and supporting documentation. Individuals should keep careful records of any public benefits received during the outbreak and while recovering from the COVID-19 pandemic. USCIS states that “to the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstances.”

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