The top Atlanta immigration lawyers at Antonini & Cohen are here to answer your questions about the effect COVID-19 may have on various public charge rules as they relate to immigration cases.
Will getting tested or receiving treatment or preventive care for COVID-19 impact my immigration case under the new public charge rule?
INSIDE THE USA: On March 13, 2020, 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). What is more, USCIS appears to be encouraging anyone with symptoms that resemble COVID-19 to seek necessary medical treatment or preventive services. USCIS has indicated that such treatment or preventive service “will not negatively affect any alien as part of a future public charge analysis.”
OUTSIDE THE USA: However, 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. We will post more on this subject when we receive information, but we encourage anyone with symptoms to get tested and anyone requiring treatment to seek treatment, because the DOS uses a totality of circumstances approach, meaning that they will consider all factors and not just a single event caused by circumstances outside of a person’s control.
Will obtaining unemployment insurance impact my immigration application under the public charge rule?
INSIDE THE USA: The Department of Homeland Security (DHS) explicitly excluded unemployment benefits from the public charge inadmissibility determination because they are considered earned benefits through the person’s employment and specific tax deductions. USCIS has specified this in its Policy Manual (Volume 8, Part G, Chapter 10 of the USCIS Policy Manual). Any agency under DHS therefore should follow this guidance.
OUTSIDE THE USA: However, the U.S. Department of State (DOS) does not address the subject specifically of how unemployment benefits will impact public charge determinations made by consular officers at U.S. consulates overseas. We will post more on this subject when we receive information, but we encourage anyone who is eligible and needs unemployment benefits to apply, because the DOS uses a totality of circumstances approach, meaning that they will consider all factors and not just a single event caused by circumstances outside of a person’s control.
Will receiving a recovery rebate under the CARES Act impact my immigration case under the public charge rule?
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act that offers relief to state and local governments, individuals, small and large businesses, and hospitals affected by COVID-19. In particular, the CARES Act provides for the issuance of one-time payments, called recovery rebates (or commonly known as “stimulus checks”), to help individuals recover from the economic impacts of the COVID-19 pandemic. Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their combined adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17.
INSIDE THE USA: The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department, and tax credits are not taken into account for the purpose of a public charge determination. USCIS also indicated in its Policy Manual that tax credits are not considered public benefits in public charge determinations (Volume 8, Part G, Chapter 10 of the USCIS Policy Manual).
OUTSIDE THE USA: The U.S. Department of State and the Foreign Affairs Manual agree that tax credits are not cash assistance for low-income families; however, the DOS has not yet specified the impact of these specific tax credits in the overall public charge determination. We will post more on this subject when we receive information, but we encourage anyone who is eligible to apply, because the DOS uses a totality of circumstances approach, meaning that they will consider all factors and not just a single event caused by circumstances outside of a person’s control. Additionally, the recovery rebate is taxable income, meaning recipients will have to include the amount received on their 2021 tax returns and pay taxes on it, if applicable.
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