What You Need to Know About Public Charge and COVID-19
One of the most important questions I have been facing from clients is whether they can apply for disaster relief and unemployment benefits because of the current COVID-19 pandemic.
As many of us know, a recent ruling by the U.S. Supreme Court on January 27, 2020 permitted the Department of Homeland Security (DHS) to implement their new self-sufficiency rule relating to the “public charge” ground of inadmissibility. DHS announced that rule was set to go into effect on February 24, 2020; any adjustment of status applications postmarked prior to February 24, 2020 will be adjudicated under policies in place before the new public charge rule.
What is a “Public Charge”?
“Public charge” is a ground of inadmissibility, which could result in a person being denied a green card, visa, or admission into the United States. It is important to know that it is not a test that applies to everyone requesting an immigration benefit. In deciding whether to grant an applicant a green card or a visa, an immigration officer must decide whether that person is likely to become dependent on certain government benefits in the future, which would make them a “public charge.” Here are a few very important points to consider in relation to public charge:
Public charge does not apply to all immigrants - this law mainly impacts those seeking permanent resident status through family member petitions.
In immigration law, public charge is a ground of “inadmissibility.” This law says that those who are viewed as likely to become dependent on the government in the future as a “public charge” are inadmissible. Grounds of inadmissibility only apply to those seeking entry at our borders or those applying for lawful permanent residence.
Many immigrant categories are exempt from the public charge ground of inadmissibility, even if they might be applying for status or a green card. U visa holders, T visa holders, asylees, refugees, and many more categories are exempt.
Public charge laws do not apply in the naturalization process, through which lawful permanent residents apply to become U.S. citizens.
What can YOU do under the CARES Act?
The following should provide some clarity on whether or not an immigrant living in the United States can apply for disaster relief: Immigrant living in the United States ARE eligible for unemployment benefits. However, the climate of fear created by the public charge rule continues to hamper the efforts of many to respond to this crisis.
Do Lawful Permanent Residents need to worry about using government services due to the coronavirus?
NO! The current public charge rule applies to people already in the United States and 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.
Does filing for unemployment benefits put someone at risk under public charge?
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.
Additionally, if a person subject to public charge ground of inadmissibility lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the person’s employer, school, or university shuts down operations to prevent the spread of COVID-19, they may submit a statement with their application for adjustment of status to explain how such methods or policies have affected the factors USCIS must consider in a public charge inadmissibility determination.
It is very important to note that 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 have extend unemployment benefits to individuals with DACA, while others have not.
Does receiving government support for a coronavirus test/treatment put someone at risk under public charge?
NO! Guidance posted on the U.S. Citizenship and Immigration Services (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.
Could a period of unemployment due to the coronavirus put someone at risk under public charge?
Maybe… The public charge rule operates like a wealth test. Immigrants who are laid off due to the coronavirus could have their diminishing 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 or adjustment of status. They can explain that the hardship was due to the COVID-19 crisis.
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.
On March 27, 2020, the U.S. House of Representatives passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.1 The CARES Act, a $2 trillion stimulus bill, builds on H.R. 6201, the Families First Coronavirus Response Act (FFCRA), to provide economic relief and health care options amidst the growing COVID-19 pandemic. This global public health crisis has served as an urgent reminder that our collective health and well-being are deeply interdependent and that it is crucial to have inclusive recovery policies in order for all of us to be healthy and safe.
Nevertheless, these bills fall short of meeting the most basic healthcare and economic needs of many Americans, including immigrant workers and their families who are on the frontlines of caring for our communities and providing critical services while others shelter at home.
The National Immigrant Law Center has published a policy brief entitled Understanding the Impact of Key Provisions of COVID-19 Relief Bills on Immigrant Communities to provide information on the COVID-19 relief package and the potential impacts on low-income immigrants and their families. It is not meant to be an exhaustive resource or complete analysis of the legislation but it can help provide some clarity during this time of incredible uncertainty within immigrant communities.
If you or a loved one have found themselves in economic hardship or a medical emergency because of the current COVID-19 pandemic, please do not hesitate to reach out for help. You should not fear reprisal for ensuring the health and safety of you or your family. Contact Diver Law Firm at (405) 896-8080 if you have any questions or concerns regarding the new public charge rule and if it may influence your decision to seek disaster relief.
Helpful resources can be found here: