Return Of The Public Charge: What You Need To Know
29 September 2020Author: USA Immigration Lawyer Alena Shautsova
The infamous public charge rule is back, it is back for all of the states of the USA, including NY, CT, and VT. The rollercoaster with the public charge started after 2d Circuit Federal Court of Appeals ruled that the public charge rule should be stopped again; then the Court explained its decision stating its ruling will apply for NY, CT, and VT only, and then it ruled one more time lifting the stop entirely. That is why there was a lot of confusion as to when and if and how to comply with the rule; additionally, until last week, USCIS did not provide clear guidelines as to what an applicant for adjustment of status had to do in order to comply with the public charge rule.
Let’s go over some points that may be useful for those who are filing for adjustment of status/change of status/extension of status.
First of all, USCIS stated that it will accept otherwise compliant filings without the form I 944 declaration of self-sufficiency if they are received by USCIS before October 13, 2020. If the packet arrives after October 13, 2020, USCIS will reject the adjustment of status filings, and filings for extension/change of status if they are not accompanied with the form I 944 and attachments. If you submit your package before October 13, 2020, the USCIS will still ask for your I-944, but it will be through a request for more evidence.
Second, if you are worried that you may be considered to be a public charge because you used some of the public benefits, you need to know that most usage/application/receipt of the benefits counts from February 24, 2020. It means, for example, if you used Medicaid that can be considered a public benefit for Immigration purposes before February 24, 2020, and stopped on March 23, 2020, you will have only one month of benefits to count toward the public charge ban. Remember, however, that if you used multiple public benefits at the same time, each of them counts as one month: for example, in one month you used Medicaid and Food Stamps, it will count as two months of usage of public benefits, and the government needs only 12 months of such usage to find you are likely to become a public charge.
Third, unemployment and stimulus checks are not considered to be “public benefits” for the purposes of the Immigration public charge rule. Also, medical treatment or preventive services received in connection with COVID-19 should not be counted against an applicant either. Most importantly, USCIS issued the following statement:
The list of public benefits considered for this purpose includes most forms of federally funded Medicaid (for those over 21), but does not include CHIP, or State, local, or tribal public health care services/assistance that is not funded by federal Medicaid. In addition, if an alien subject to the public charge ground of inadmissibility lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the alien’s employer, school, or university voluntarily shuts down operations to prevent the spread of COVID-19, the alien may submit a statement with his or her application for adjustment of status to explain how such methods or policies have affected the alien as relevant to the factors USCIS must consider in a public charge inadmissibility determination. For example, if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstances.
It means, that if you are unemployed as a result of COVD-19, you need to provide a statement explaining this fact and the connection between loss of job/inability to find a job and COVID-19 so that this unemployment is not going to count against you as a negative factor in public charge determination.
Lastly, the public charge may be overruled completely by the U.S. Supreme Court, however, the chances of that happening are small, since the newly nominated (but not yet confirmed) prospective Supreme Court Justice Amy Coney Barrett actually wrote a lengthy dissent in Cook County v. Wolf in which the Seventh Circuit temporarily prevented the Trump administration from implementing “public charge”.
If you need help with Immigration challenges in the US, please call us to reserve a confidential consultation at 917-885-2261.