Public Charge Rule After Covid-19
We at Buda Law Group sincerely hope that you and your families are staying safe. In this time of uncertainty, it is important for us to put our faith in God, and each other to get through these very difficult times.
Due to the pandemic, there have been many questions related to what benefits an immigrant/nonimmigrant may safely apply for without triggering the Public Charge Rule recently implemented by USCIS. Also, there are many concerns about extensions of travel visas, etc. I hope to clarify your concerns with the following information.
Additionally, you are very welcome to email me directly for a confidential conversation, and we can set up a time to talk on the phone. I am hopeful that Buda Law Group will be open in our Arcadia office in the next 4-5 weeks. We look forward to seeing you in person then.
Travel Guidance:The USCIS released New Guidance today. Basically, they are saying that filing a Visa Extension or Change in Status (Forms I-539 or I-485), is recommended.
They further advise that people who have filed are basically considered “in status”.
Public Charge Rule:Q: What is the Public Charge Rule?A: The final rule requires certain immigration applicants who are subject to the public charge ground of inadmissibility to report certain information related to public benefits received on or after February 24, 2020.
Q: Who does the Public Charge Rule apply to?A: Applicants applying for adjustment of status and all petitioners and applicants for extension or change of nonimmigrant status in any category are subject to the rule.
Q:Who is exempt from this Rule?A: Refugees, Asylees, T and U visa applicants, Violence Against Women’s Act applicants and military service member applicants.
Q: Which benefits subject you to the Public Charge Rule?A: The following benefits are considered a public charge benefit:1. Supplemental Security Income;2. Temporary Assistance for Needy Families;3. Any federal, state, local, or tribal cash benefit program for income maintenance (Welfare cash benefit);4. Supplemental Nutrition Assistance Program (formerly “foot stamps”);5. Section 8 Housing Assistance;6. Section 8 Project Based Rental Assistance;7. Public Housing and;8. Medicaid
Q: Do people with green cards need to worry about using government services due to the coronavirus?A: No. The current public charge rule applies to people already in the United States who are seeking to obtain a green card, as well as those in another country seeking a visa to come to the U.S. The new rule also requires those seeking to extend or change their nonimmigrant status to submit information on public benefits use. But it does not apply the full public charge test to those individuals.This means that lawful permanent residents—those who already have green cards—do not need to worry about triggering the harsh effects of the public charge rule by using government services during the coronavirus.
Q: Does filing for unemployment put someone at risk under public charge?A: No. When the Department of Homeland Security (DHS) published the public charge rule, it made clear that receiving unemployment benefits is not considered to be receiving a “public benefit.” This is because unemployment is an “earned benefit” that workers pay into with their paychecks. This includes Medicare and Social Security.
Not every immigrant laid off due to COVID-19 will be eligible for unemployment. People seeking to file for unemployment generally must be legally authorized to work. Some states extend unemployment benefits to individuals with DACA, while others do not.
Q: Are stimulus checks subject to the Public Charge Rule?A: No.
These checks fall under the disaster relief category and are not subject to the Rule. However, not everyone is eligible to receive a stimulus check as the government must make the determination. The Government will only issue stimulus checks to those non-immigrants who have met the “Substantial Presence Test” defined by the IRS. For more on the substantial presence test, please visit https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test
Q: Could a period of unemployment due to the coronavirus put someone at risk under public charge?A: Maybe. The public charge rule operates like a wealth test. Immigrants who are laid off due to the coronavirus could have their diminished financial wellbeing counted against them if they apply for a green card in the future or are forced to rely on public benefits to survive.
However, USCIS has indicated that individuals in that situation should provide additional evidence along with their application for a green card. They can explain that the hardship was due to COVID-19.The agency says it will “take all such evidence into consideration in the totality of the [immigrant’s] circumstances,” indicating that they will likely provide leeway in that event.
Q: Does testing positive for coronavirus or receiving government support for a coronavirus test put someone at risk under public charge?A: No. Guidance posted on the USCIS website says that “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.”This is true even if someone pays for the treatment through a benefit which would normally count against them. Again, this includes Medicaid.The rule itself also exempts the use of Medicaid benefits for treatment of an “emergency medical condition.” Immigrants should not worry about using emergency Medicaid if they become sick with the virus and need treatment.