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FAQs: COVID-19 and Public Charge Immigration Inadmissibility

March 31, 2020

US Citizenship and Immigration Services (USCIS) issued a statement on March 13, 2020, clarifying that receipt of any treatment or preventive services related to the coronavirus (COVID-19) will not negatively affect an individual as part of a future Public Charge Rule analysis. This alert answers several frequently asked questions on how the receipt of COVID-19-related services will be considered under the new rule.

Specifically, USCIS has stated that it will not consider testing, treatment, or preventative care, which includes vaccines if one were to become available, related to COVID-19 as part of a public charge inadmissibility determination. COVID-19 testing, treatment, or care will also not be considered in relation 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 as defined in the rule. Additionally, certain earned benefits, such as state unemployment benefits are not considered in the public charge inadmissibility test.

What is the Public Charge Rule?

Effective February 24, 2020, the new Public Charge Rule issued by the US Department of Homeland Security redefines the list of applicable public benefits and the threshold level of receipt of a public benefit that would result in finding that an applicant for an immigration benefit is inadmissible as “likely to become a public charge.” Read our earlier alert for a more detailed analysis of the Public Charge Rule.

How will the receipt of COVID-19 treatment or preventive services be considered under the Public Charge Rule?

USCIS is encouraging those with symptoms that resemble COVID-19 to seek necessary medical treatment or preventive services. The rule still requires USCIS to consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination. However, USCIS is clarifying that the use of an applicable public benefit in relation to COVID-19 testing, treatment, or preventive services would not be treated as a negative factor in the public charge analysis. The list of public benefits considered for this purpose includes most forms of federally funded Medicaid (for those over 21), but does not include the Children’s Health Insurance Program (CHIP), or state, local, or tribal public healthcare services/assistance not funded by federal Medicaid.

What other factors will be included in the COVID-19 Public Charge exception?

If a foreign national who may be subject to a public charge analysis lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the foreign national’s employer, school, or university voluntarily shuts down operations to prevent the spread of COVID-19, the foreign national may submit a statement with his or her immigration application to explain the effects of such methods or policies relevant to the factors USCIS must consider in a public charge inadmissibility determination. For example, if the applicant was unable to work for a specific period due to a COVID-19 quarantine, the statement could provide an explanation of these circumstances. USCIS will take all such evidence into consideration in the totality of the circumstances test when reviewing the foreign national’s application for an immigration benefit and determining whether the applicant is likely to become a public charge.

Will a foreign national’s receipt of state unemployment benefits have a negative impact on a future application for an immigration benefit under the Public Charge analysis?

USCIS does not consider state unemployment benefits in the public charge inadmissibility determination because they are considered an earned benefit. Note that whether a foreign national on a work visa can apply for and receive unemployment benefits may vary from state to state. Most states are beginning to provide specific guidance on applying for these benefits during the COVID-19 crisis on their unemployment websites.

How will the cash assistance included in the newly passed CARES Act be considered under the Public Charge Rule?

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) specifically mandates that people considered “nonresident aliens” for tax purposes will not be eligible to receive the $1,200 per adult and $500 per child benefit. A “nonresident alien” is a tax term, defined by the Internal Revenue Service as a foreign national who has not passed the green card test or the substantial presence test. Lawful permanent residents and most foreign nationals holding work visas will be eligible for the cash assistance. The benefit will be provided in the form of a tax refund that is considered an advance tax credit, and therefore is unlikely to be considered as a public benefit for the purposes of the public charge inadmissibility determination.

Conclusion

As with any health emergency, foreign nationals should not hesitate to seek medical treatment or preventive services if they are experiencing symptoms of COVID-19. Employers should also ensure that employees are aware of the policies and methods in place for seeking medical treatment or preventive services, in addition to unemployment benefits in relation to COVID-19.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga