A version of this article will appear in Bender's Immigration Bulletin. © Greg McLawsen (2020).…
As we head together into this time of global crisis, the technicalities of U.S. immigration law may not be the first thing on your mind. But judging from some emails I’ve been getting, many of you are looking ahead to the bright future that we will all share. Bravo! Specifically, some folks have asked the smart question of how certain payments provided during the crisis might impact “public charge” determinations. Could you get in trouble if you accept the stimulus payment or go on unemployment insurance? I believe the answer – fortunately – is that either is okay. Here’s my two cents.
What is “public charge inadmissibility?”
If you’re reading this post you probably have some knowledge of this once-arcane aspect of U.S. immigration law. In short, public charge inadmissibility is the notion that immigrants need to show that they will not be a drain on public resources. In the words of USCIS, they need to demonstrate that they can be self-sufficient.
For a long time, public charge was more or less in the background of U.S. immigration law. That changed, however, under the current administration. The rules have been changed, and a complicated new Form I-944, Declaration of Self Sufficiency is required in most green card cases. This form looks at all sorts of information that is supposed to show whether a green card applicant has the ability to support herself. A big part of that test is whether the person has received public benefits. If you want to do a deep dive into the rule, read my long article here.
Covid stimulus payment.
Under the emergency relief package passed recently by Congress, U.S. taxpayers with income under $75,000 will receive a one-time payment of up to $1,200. The purpose of this payment, of course, is to help families weather the economic devastation wrought by the global pandemic. I have little concern that the stimulus payment will create a public charge problem for green card applicants.
First off, the public benefits that cause negative public charge determinations are specifically defined by law at 8 C.F.R. 212.21(b). The “naughty list” includes means-tested programs like Medicaid and cash assistance. The stimulus payment is not on that list.
More to the point, just think about the very purpose of the stimulus check. The very reason Congress created the stimulus is that it recognized that all American families need some help getting through this crisis (or at least those earning less than $75,000). Receiving the payment doesn’t make a green card applicant dependant on the government, it just means that she is in the same situation as everyone else.
This is not to say that someone who receives the stimulus payment might not have public charge issues for other reasons. Under the new rules, anyone with household income under 250% of the Federal Poverty Guidelines needs to take a careful look at their case. It’s just that the payment itself doesn’t mean the person will fail public charge scrutiny.
We received a lot of questions about unemployment insurance even before the Covid crisis. In people’s minds, a lot of times this gets lumped together with other money from the government, like cash assistance under TANF. But legally, unemployment insurance is very different. Specifically, it’s insurance. It is insurance that both an employee and an employer have, in effect, purchased from the government. You pay into the plan when employed, and can draw on the policy when uninsured.
Fortunately, USCIS is quite clear on this one. The Form I-944 instructions specifically show that unemployment payments have to be counted as “other income” on the Form.
Especially if your unemployment is caused by the pandemic, receiving those benefits should not create a public charge problem for you.
You’ve heard it a thousand times, but please stay safe and socially distanced. We will get through this together as a deeply-connected global community. I can’t take care of your 5-year-old or get groceries for you, but if you have questions about how this crisis impacts immigration, ask away.
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