Unemployment Benefits Are Exempt from Public Charge Ground of Inadmissibility

As the COVID-19 pandemic evolves in the United States, many employers are making the difficult decision to lay off workers. Workers, in turn, have the option to apply for unemployment benefits to support themselves through these uncertain and difficult times.

Noncitizens may be concerned about applying for and receiving unemployment benefits and potentially subjecting themselves to the “public charge” ground of inadmissibility in light of the Department of Homeland Security’s (DHS) new and more restrictive analysis.

A “public charge” is someone who likely to receive public benefits in the future. If a noncitizen is found to be inadmissible as a public charge, he or she is not eligible to become a lawful permanent resident and receive a “green card.”

Unemployment benefits are not means tested public benefits and should not negatively affect a noncitizen’s immigration status or result in a public charge bar to residency or other nonimmigrant status in the future.

First, many noncitizens are exempt from or eligible for a waiver of public charge determinations, including refugees, asylees, T and U nonimmigrant visa applicants, Afghan and Iraqi special visa interpreters, special immigrant juveniles, and most self-petitioners under the Violence Against Women Act, among others.

Second, for those noncitizens to whom the public charge ground of inadmissibility applies, as noted above, receipt of unemployment insurance is not a public benefit under the new public charge rule. The rule explicitly lists benefits that can be considered in the public charge analysis, which are (Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), most forms of Medicaid, and certain housing assistance programs. Notably absent from this list are state-funded programs and unemployment insurance.

To be eligible for unemployment benefits, noncitizen workers have to meet the same requirements as U.S. citizen workers. These requirements vary by state. Although unemployment benefits are not counted against noncitizens for purposes of the public charge analysis, noncitizen workers must still ensure they meet state eligibility requirements before applying.

In Colorado, the Colorado Department of Labor and Employment website provides excellent information on eligibility for unemployment benefits. We encourage our clients to review the CDLE’s Frequently Asked Questions (FAQ) on Colorado’s unemployment insurance program.

Finally, according to United States Citizenship and Immigration Services’ (USCIS) website, services received by noncitizens related to COVID-19 should not negatively affect the public charge analysis:

USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services.  Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.  

To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will not consider testing, treatment, or preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination.

The list of public benefits considered [in the new public charge rule] 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 are not funded by federal Medicaid.

If you have questions about this or any other immigration matter, Kolko & Casey, P.C. remains available for your call. We wish you and those you love health and safety during these trying times.