COVID-19 and the Public Charge Rule

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I have been getting numerous inquiries from clients regarding whether their receiving government benefits through CARES Act will affect their current or impending immigration statuses.

USCIS started its expansive public charge rules as of February 24, 2020. What used to be not considered as public benefits triggering inadmissibility in the past got included such as Medicaid, TANF, certain housing benefits. The rule does not include consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, student and mortgage loans, energy assistance, food pantries and homeless shelters and Head Start.

On April 7, 2020, American Immigration Lawyers Association (“AILA”) provides responses to some frequently asked question regarding COVID-19 pandemic and its impact on public charge inadmissibility determinations.

Testing, Treatment or Preventive Care for COVID-19?
On March 13, the U.S. Citizenship and Immigration Services (USCIS) announced that the agency will not consider “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” as part of a public-charge 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 (e.g., federally funded Medicaid).

Unemployment Insurance Benefits?
As DHS explained in its final rule on inadmissibility on public charge grounds, “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.” In addition, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that unemployment benefits are not considered by USCIS in a public charge inadmissibility determination as unemployment insurance is considered by USCIS as an “earned” benefit. For a non-exhaustive list of other public benefits that USCIS does not consider in the public charge inadmissibility determination, please see Volume 8, Part G, Chapter 10 of the USCIS Policy Manual.

The U.S. Department of State (DOS) has not confirmed whether treatment or care related to COVID-19 will be considered as part of its public charge totality of the circumstances analysis. Moreover, the DOS Interim Final Rule and the Foreign Affairs Manual do not directly address the issue of how unemployment benefits will impact public charge determinations made by consular officers at U.S. consulates overseas. AILA’s DOS Liaison Committee is seeking clarification from DOS regarding how consular officers will factor in unemployment insurance compensation in public charge determinations at U.S. consulates overseas.

** This is one of the many instances where DOS or DHS trail behind each other in forming the policies regarding new regulations. Given the DHS analysis that unemployment benefits are not viewed as public charge and that this is part of a pandemic relief bill, it would be very unlikely that DOS will treat these benefits differently than DHS.

Recovery Rebates (Commonly Known as “Stimulus Checks”)?
The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS final rule on inadmissibility on public charge grounds is clear that tax credits are not taken into account for the purpose of a public charge determination. DHS indicates in its final rule that only public benefits as defined in 8 CFR 212.21(b) will be considered in the public charge inadmissibility determination. 8 CFR 212.21(b) defines a public benefit to include means-tested programs like Medicaid and cash assistance for income maintenance, however 8 CFR 212.21(b) indicates that cash assistance for income maintenance does not include tax credits. Furthermore, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that tax credits are not considered public benefits in a public charge inadmissibility determination.

Similarly, the Department of State (DOS) Interim Final Rule and the Foreign Affairs Manual (FAM) align with the DHS final rule in that the DOS interim final rule and FAM indicate that for the purposes of defining “public benefit”, cash assistance for income maintenance does not include tax credits. AILA’s DOS Liaison Committee is seeking additional clarification from DOS regarding how consular officers will factor in tax credits in public charge determinations at U.S. consulates overseas.

 


About the Authors

Isabella Kim

Isabella’s practice focuses on business and family immigration law.  She offers complete services to international businesses and individuals whose legal needs involve both immigration law and business law.

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