With the onset of the COVID-19 pandemic many non-citizens, like their U.S. citizen counterparts, were thrust into a world of financial uncertainty. In order to alleviate some of that stress, they have sought the safety net of unemployment benefits, which are typically state-sponsored insurance programs. However, unlike U.S. citizens, non-citizens holding various types of legal status in the U.S. have another dimension to consider: whether taking advantage of unemployment benefits will make them susceptible to findings of being a likely “public charge,” leading to either inadmissibility (if they’re still seeking U.S. status) or deportation (if they already hold a U.S. green card or other lawful status).
In the very short term, this should definitely not be seen as a problem. On July 29, 2020, a U.S. District Court in the Southern District of New York enjoined (blocked) the U.S. government from applying its heightened public charge analysis, which was originally issued in August 2019, for at least so long as the COVID-19 pandemic is still in effect. Instead, while the injunction is in place, the government must use the more relaxed 1999 public charge guidance, which places much less emphasis on receipt of public benefits. The court’s orders bind both the Department of Homeland Security (DHS) and the Department of State (DOS).
Thus for non-citizens, the risk of being declared a public charge is significantly decreased while the injunction remains in effect. But let's take a look at the longer-term, so that non-citizens can plan for the possibility that this injunction will be lifted and the newer public charge rules come back into force.
Before delving into a public charge analysis, it’s important to clarify: Not all non-citizens who work and are laid off will be entitled to unemployment benefits. Only certain legal categories will qualify, including:
Other categories, like H-1B visa holders, L-1 visa holders, undocumented immigrants, and people with expired USCIS work authorization (even if their work authorization renewal is pending) do not qualify for unemployment benefits at all. However, they might still be eligible for other public benefits during the pandemic.
There are two risks associated with being declared a public charge:
Applicants for immigration status who have received one or more public benefits for more than 12 months within a three-year period will be considered inadmissible as a public charge under Section 212(a)(4) of the Immigration and Nationality Act (I.N.A.). On this basis alone, they can be denied entry to the United States or a request for extension or adjustment of their status here.
There are exceptions, including refugees, asylees, and U and T visa recipients. All of these categories of applicant are ordinarily exempt from the public charge ground of inadmissibility, both when applying for these statuses and if and when they apply to get a green card (adjust status).
Although inadmissibility mostly affects people who are applying for a visa or green card, even lawful permanent residents can be affected by inadmissibility in rare situations. For example, if they were to leave the U.S. for more than 180 days and then seek readmission, they would be examined for inadmissibility.
Moreover, the Trump administration is trying to reinstate public charge as a ground for deportation, which is technically permitted under I.N.A. § 237(a)(5).), but in practice has not been used to deport non-citizens.
The Department of Homeland Security (DHS) considers unemployment a benefit that its holders have earned, rather than a public or need-based “benefit.” Therefore, applying for unemployment will not have any negative consequence in a public charge analysis.
This is true even for the expanded unemployment benefits under the Coronavirus Aid, Relief, and Economic Security (CARES) Act due to the COVID-19 pandemic. The CARES Act has several provisions, but its main points include:
Even though the CARES Act expansion is funded directly by the federal government (rather than paid into by you or your employer), you would still be deemed to have earned it, and thus it would not be considered a public benefit.
The expanded unemployment benefits are especially important to many non-citizens, who might work low wage jobs or have gig jobs that do not normally qualify for state unemployment benefits. The extra $600/week benefit expired on July 31, 2020 (though Congress is working on potentially expanding this to a later date). Whether it will be extended remains a question.
On August 8, 2020, President Trump issued an Executive Order that would theoretically provide for $400/week in PUA. However, most experts on both sides of the political aisle are doubtful as to whether he has the legal authority to institute or fund such a measure. As of August 12, 2020, this Executive Order expands unemployment in name only, and does not actually assist workers.
However, even after the $600/week benefit expires, other provisions of the CARES Act remain in effect until December 31, 2020. That means that even if you are self-employed or an independent contractor, you can still get unemployment after July 31, 2020.
As a side note, while DHS and USCIS have clearly stated that they do not consider receiving unemployment as a public charge risk, the Department of State (DOS)'s opinion for purposes of people applying via consular processing is less clear .
The DOS has not confirmed whether receiving unemployment benefits will be considered in deciding whether an applicant is a likely public charge. For most applicants living overseas, this is a non-issue, because they will have qualified for unemployment benefits only if physically within the United States. But, because of the uncertainty, if you are in the U.S. and were considering applying for a visa through overseas consular processing, think twice or consult with an attorney if you have taken advantage of unemployment benefits.
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