The Public Charge Rule -- Background

In February 2020, USCIS implemented the “public charge” rule. A public charge is a ground of inadmissibility, or a reason an immigrant can be denied a green card, visa, or admission into the United States. The rule requires USCIS to investigate and determine if the immigrant will likely become dependent on government benefits, which would in turn, burden the American taxpayer and make the immigrant a “public charge.” This is what the rule intends to prevent.

In determining if an immigrant will become a public charge, the immigrant will be required to complete an I-944 Form, which asks questions relating to the immigrant’s age, income, assets, education, health, and debts. The I-944 requires the immigrant to produce a credit report and score and requires a written explanation addressing a negative credit history and/or low credit score. USCIS will use the I-944 information to and decide – in the USCIS’s discretion – whether the immigrant will become dependent on government benefits in the future, i.e., become a “public charge.”

Before this rule, use of government benefits was not a barrier to legal status in the United States. Now, the rule equips USCIS with the ability to delve into an immigrant’s health and financial history to decide whether the immigrant is worthy of admission to the United States. This is a “totality of circumstances” analysis – meaning no single factor will make an immigrant inadmissible. Rather, USCIS will weigh all the factors together in making a determination.

The Introduction of Federal Programs in the Wake of COVID 19

Around February 2020, the United States and the rest of the world was also hit with the deadly COVID 19 pandemic. The virus made its way to the United States and wasted no time spreading across the country. To slow the spread of the virus, individual states enforced the Center for Disease Control’s (“CDC”) recommendations and required all non-essential businesses to close and all non-essential workers to stay home. As a result, businesses have and continue to suffer. Individuals who were laid off no longer have the income needed to support their families. In response, the federal government introduced various programs intended to support individuals and families during the crisis. To date, these programs include unemployment insurance, cash assistance, health care, and the loans under the Payment Protection Program created by the Small Business Administration (“SBA”).

Public Charge Consequences in the Wake of COVID 19 Federal Programs

While these federal programs prove extremely beneficial for most individuals, immigrants have a critical issue to consider – the public charge consequences of applying for, and accepting federal assistance under these programs. The following sections intend to clarify and provide peace of mind in a time where the team at Ahmad and Associates feel you need it most.

1. Unemployment Insurance Under The CARES Act

   • Details: Created to cover employees who would normally not qualify for unemployment insurance (i.e., independent contractors). Also provides an additional thirteen weeks of benefits.
   • Public Charge Consequences: None. USCIS confirms that unemployment benefits are “earned benefits” and not considered in public charge determinations.

2. Cash Assistance Under The CARES Act

   • Details: Persons earning less than $75,000 are eligible for a one-time payment of $1,200, while married couples will receive an additional $500 per child.
   • Public Charge Consequences: None. This payment is a tax credit and the public charge rule clearly states that tax credits are not considered in public charge determinations.

3. Health Care Under the Families First and CARES Act

   • Details: The Families First Act funds COVID 19 testing for individuals without insurance and the CARES Act will reimburse claims to certain health care providers for testing and treating uninsured individuals for COVID 19.
   • Public Charge Consequences: None. USCIS announced that it “encourages all those … with symptom that resemble [COVID 19] … to seek necessary medical treatment or preventive services” and such treatment and preventative services will not be used in public charge determinations.

4. SBA Payment Protection Loans

   • Details: Applies to certain small business with under 500 employees and allows the business to apply for a loan to cover payroll, rent, and utilities.
   • Public Charge Consequences: Probably none. This loan is not listed amongst the public benefits in the I-944, thus unlikely that USCIS will consider it in making a determination. Further “disaster relief” is clearly excluded from the public charge rule. Even assuming this loan is considered in a public charge determination, it is a “totality of circumstances” analysis. Thus, it is only one of many factors USCIS will consider and unlikely to lead to a public charge finding in itself, especially considering the worldwide impact and knowledge of the COVID 19 pandemic.

Ahmad & Associates will continue to monitor updates. If you have any questions or concerns about the public charge rule or any other immigration issue, do not hesitate to contact us. We are here to help.