Immigration Under COVID-19: Public Charge Rule

This Holland & Knight alert is a continuation of our notifications regarding the changes to immigration processes and procedures as a result of the coronavirus (COVID-19). Set forth below is the second installment advising on recent guidance from U.S. Citizenship and Immigration Services (USCIS) regarding the Public Charge Rule and COVID-19.

What Is the Public Charge Rule?

U.S. immigration law has always valued self-sufficiency. In the early 1800s, Congress proclaimed that foreign nationals are not admissible into the United States if they are unable to care for themselves without relying on the U.S. government and becoming a public charge. Since 1996, federal laws have stated that foreign nationals must generally be self-sufficient and in August 2019, the U.S. Department of Homeland Security (DHS) published a final rule regarding how DHS will determine if a foreign national applying for admission to the U.S. or adjustment of status to a U.S. green card holder is likely at any time to become a public charge. The final rule was stalled in litigation, but effective Feb. 24, 2020, the USCIS commenced implementing the Inadmissibility on Public Charge Rule, which is applicable to foreign nationals applying for admission to or adjustment of status in the U.S., as well as foreign nationals seeking to extend their nonimmigrant stay in the U.S. or to change their nonimmigrant status.

The Public Charge Rule clarifies the factors considered by DHS in determining whether a foreign national is likely to become a public charge at any time in the future, thereby making the foreign national inadmissible and ineligible for admission to the U.S. or adjustment of status. It also requires foreign nationals in the U.S. under a nonimmigrant visa seeking to extend their stay in the same nonimmigrant visa classification or seeking to change their status to a different nonimmigrant classification to demonstrate, as a condition of approval, although it is our understanding that the USCIS is not currently enforcing this rule for such nonimmigrant visa holders, but this can change at any time and without warning.

Who Is Excluded from the Public Charge Rule?

The Public Charge Rule does not apply to the following:

• U.S. citizens, even if the U.S. citizen is related to a noncitizen who has been determined to be inadmissible under the Public Charge Rule
• Foreign nationals who Congress has exempted from the Public Charge Rule, such as
  • Refugees
  • Asylees
  • Afghans and Iraqis with special immigrant visas
  • Certain nonimmigrant victims of trafficking (T visa) and crime (U visa)
  • Foreign nationals applying under the Violence Against Women Act (VAWA)
  • Special Immigrant Juveniles (SIJs)
  • Those to whom DHS has granted a waiver of public charge inadmissibility

What Benefits Will Be Considered Under the Public Charge Rule?

Under the Public Charge Rule, the DHS will consider the following benefits:

• Any federal, state, local or tribal cash assistance for income maintenance, including Supplemental Security Income, Temporary Assistance for Needy Families and federal, state, local or tribal cash benefit programs for income maintenance (often called General Assistance in the state context, but can also exist under different names)
• Supplemental Nutrition Assistance Program (formerly called Food Stamps)
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance, including Moderate Rehabilitation
• Public Housing under Section 9 of the Housing Act of 1937, 42 U.S.C. 1437 et seq.
• Most forms of federally funded Medicaid, with certain exclusions as detailed below

What Public Benefits Will Not Be Considered Under the Public Charge Rule?

• Benefits received by U.S. service members if the foreign national service member received a qualifying public benefit while the foreign national is or was enlisted in the U.S. armed forces or was or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces
• Benefits received by the spouse or children of U.S. service members described above
• Benefits received by certain children born to or adopted by U.S. citizens living outside the U.S.
• Certain Medicaid benefits, such as those received:
  • for the treatment of an "emergency medical condition"
  • as services or benefits provided in connection with the Individuals with Disabilities Education Act
  • as school-based services or benefits provided to foreign nationals who are at or below the oldest age eligible for secondary education as determined under applicable state or local law
  • by foreign nationals under age 21
  • by pregnant women and by women within the 60-day period beginning on the last day of pregnancy
• Benefits received on behalf of a legal guardian

For How Long Can Benefits Be Received Without Causing an Issue?

The Public Charge Rule considers a foreign national a public charge if he or she receives public benefits for more than 12 months in total within any 36-month period, and the receipt of two benefits in one month counts as two months.

What Factors Weigh Heavily in Favor of a Determination of Public Charge?

USCIS has advised that the following factors will weigh heavily in finding that a foreign national is likely to become a public charge, thereby making the foreign national ineligible for the immigration benefit being pursued:

• the foreign national is not a full-time student and is authorized to work but cannot show current employment, a recent employment history or a reasonable prospect of future employment
• the foreign national has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in total within any 36-month period, beginning no earlier than 36 months before the foreign national applied for admission or adjustment of status on or after Feb. 24, 2020
• the foreign national has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for himself or herself, attend school or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs relating to a medical condition
• the foreign national has previously been found by an immigrant judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds

What Factors Weigh Heavily Against a Determination of Public Charge?

• the foreign national has household income, assets or resources and support from a sponsor, not including any income from illegal activities or from public benefits, of at least 250 percent of the Federal Poverty Guidelines for the foreign national's household size
• the foreign national is authorized to work and is currently employed in a legal industry with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the foreign national's household size
• the foreign national has private health insurance appropriate for the expected period of admission, so long as the foreign national does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance

How Does COVID-19 Impact the Public Charge Rule?

COVID-19 Testing, Treatment and Preventative Care

On March 13, 2020, the USCIS announced that it will not consider "testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19" in its public-charge determination or in relation to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if the treatment is provided or paid for by one or more public benefits, such as federally funded Medicaid. More specifically, the USCIS encourages anyone with COVID-19 related symptoms, such as a fever, cough and shortness of breath, to seek necessary medical treatment or preventive services care and has indicated that such treatment and care "will not negatively affect any [foreign national] as part of a future public charge analysis."

Receipt of Unemployment Insurance

The USCIS has also confirmed that unemployment insurance is generally not taken into consideration for purposes of making a public charge determination. In its explanation, the DHS explained that it "would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post-secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person's employment and specific tax deductions." Additionally, the USCIS has indicated in its Policy Manual that unemployment benefits are not considered by USCIS in a public charge inadmissibility determination as unemployment insurance is considered by USCIS to be an "earned" benefit.

What Is the U.S. Department of State's Position?

The U.S. Department of State (DOS) has not confirmed whether COVID-19 treatment or care will be considered as part of its public charge totality of the circumstances analysis or how the receipt of unemployment benefits will affect applications by foreign nationals being processed at U.S. Embassies and Consulates. 

How Can Holland & Knight Assist You?

Holland & Knight has a solid team of transactional and litigation lawyers very skilled at analyzing options, preparing and submitting petitions and applications for immigration benefits and suing the government, as and when necessary. Even though we are working remotely at this time, we remain available to assist you in discussing options and taking any action needed. If you have any questions about the current immigration landscape, please contact Tara Vance or another member of Holland & Knight's Immigration, Nationality and Consular Team.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.