By Robert P. Gaffney, Esq. and Kristina M. Seil, Esq.

The “public charge” provisions of the Immigration and Nationality Act are admissibility provisions that apply to applicants for admission to the U.S., not generally to lawful permanent residents (LPRs), or conditional lawful permanent residents (CLPRs) who are not applying for admission, but for removal of conditions.

An LPR or CLPR would normally face questions about admissibility only if he/she were treated as an “applicant for admission” when returning to the U.S. from foreign travel.

LPRs and CLPRs who are returning from travel outside of the U.S. are not treated as “applicants for admission” unless they:

  1. Have abandoned LPR status
  2. Have been absent for 180 days at one time (even if holding an unexpired reentry permit)
  3. Have engaged in “illegal activity” after leaving the U.S.
  4. Departed while removal or extradition proceedings were pending
  5. Committed certain criminal offenses at any time; or
  6. They are attempting to enter without inspection

An LPR or CLPR who is treated as an applicant for admission under one or more of these six grounds may be found inadmissible to the U.S. under the “public charge” or other grounds of inadmissibility set forth in the law. This determination may be made by an immigration judge after the person seeks to return to the U.S., or in the context of the processing of a Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status or Form N-400, Application for Naturalization.  If the applicant is determined to have been inadmissible at the time of last entry, this can lead to denial of an I-829 petition or subsequent application for naturalization.

It is important to note that the CARES Act (Coronavirus Aid, Relief, and Economic Security Act) includes provisions that modify a wide range of programs and requirements, including those regarding:

  • Unemployment benefits
  • the tax treatment of withdrawals from retirement accounts, business income, losses, and charitable contributions;
  • medical product supplies;
  • health insurance coverage for COVID-19 testing and vaccinations;
  • the health care and aviation workforces;
  • mortgage payments, evictions, and foreclosures for properties with federally backed mortgages;
  • student loans and financial aid;
  • aviation excise taxes;
  • Medicare and Medicaid;
  • the Food and Drug Administration drug approval process;
  • the emergency paid sick leave program;
  • banking and accounting rules; and
  • the U.S. Postal Service’s borrowing authority

For the purposes of determining who is inadmissible under the “public charge” grounds, the Department of Homeland Security will consider the “totality of the circumstances” of each case, with special consideration given to “heavily weighted positive factors” as well as any “heavily weighted negative factors.”

Receipt of the public benefits listed in the new rule is considered to be a “heavily weighted negative factor.” The listed public benefits include:

  • Supplemental Security Income;
  • Temporary Assistance for Needy Families;
  • Any federal, state, local, or tribal cash benefit programs for income maintenance (often called general assistance in the state context, but which may exist under other 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 the Housing Act of 1937, 42 U.S.C. 1437 et seq.); and
  • Federally funded Medicaid (with certain exclusions).

It is understandable that LPRs and CLPRs working in industries affected by COVID 19 may need to apply for unemployment benefits. Although unemployment benefits are a form of insurance paid for by employees and their employers and therefore not “listed public benefits” in the new rule, unemployment may be seen as a negative factor in the totality of the circumstances USCIS will consider for public charge inadmissibility. However, due to the special circumstances presented by COVID 19, brief unemployment due to the virus is likely not enough in itself to render an applicant inadmissible under the public charge grounds.

Some LPRs or CLPRs may also wish to apply for other benefits under the CARES Act due to COVID 19. These individuals should keep in mind that CARES Act benefits may include expanded eligibility for Medicare and Medicaid, which are “listed public benefits,” receipt of which is considered a “heavily weighted negative factor” in the public charge inadmissibility analysis. Therefore, if the LPR or CLPR anticipates that he or she may be subject to inadmissibility analysis (for example, due to a stay of 180+ days outside the US), caution should be used in applying for benefits under the CARES Act, to make sure that none of the benefits applied for are “listed public benefits.”

In sum, COVID 19 presents special circumstances which may lead permanent residents who would normally be fully self-sufficient to apply for public benefits. Receipt of certain public benefits can be seen as a “heavily weighted negative factor” in the new public charge inadmissibility grounds set out by the Trump Administration. Typically, permanent residents are not evaluated under inadmissibility grounds as they have already been “admitted” to the United States, however, certain permanent residents, including permanent residents who travel outside the United States for 180 days or more, can still be subject to inadmissibility under the public charge grounds. Therefore, where possible, LPRs should use caution before applying for public benefits.

Note: The information provided is not intended to constitute legal advice nor does it create an attorney-client relationship between Law Offices of Robert P. Gaffney and anyone else. The content herein is not intended to be used as a substitute for specific legal advice. Individuals or organizations should not act based upon this information without obtaining professional advice regarding their particular facts and circumstances.

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