Receiving Unemployment Benefits Will Not Make You a "Public Charge"

The COVID-19 pandemic thrust many non-citizens, like their U.S. citizen counterparts, into a world of financial uncertainty. Many have had to rely on the safety net provided by 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).

Who Can Get Unemployment Benefits

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:

• lawful permanent residents (green card holders)
• DACA (deferred action for childhood arrivals) recipients with valid work permits
• TPS (temporary protected status) recipients with work authorization
• H-4 visa holders with work authorization
• asylees and refugees with work authorization
• U and T visa holders with work authorization
• TN visa holders, and
• other non-citizens with valid entry into the U.S., and work authorization, who are able and available to work.

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.

Why Being Considered a "Public Charge" Worries Non-Citizens

There are two risks associated with being declared a public charge:

1. being found inadmissible to the U.S., and
2. facing deportation/removal proceedings.

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.

No Public Charge Finding for Receiving Unemployment

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 that became available under the Coronavirus Aid, Relief, and Economic Security (CARES) Act due to the COVID-19 pandemic. The CARES Act had several provisions, but its main points included:

• expanding how long someone can collect unemployment benefits from 26 to 39 weeks
• increasing the amount of benefits someone can receive under ordinary state unemployment by an additional $600/week, and
• including people who do not normally qualify for unemployment benefits, such as independent contractors, self-employed people, part-time or low wage workers, and gig economy workers.

Unfortunately, these benefits largely expired at the end of 2021, or rely on individual state participation.

Uncertainty About Unemployment Benefits and Public Charge at the Department of State

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.