As the Covid-19 crisis evolves, several businesses and employees have been impacted. Several questions arise in this context regarding status, unemployment benefits and the all-important question as to whether seeking and receiving unemployment benefits would be considered a public benefit under the public charge rule.

On Feb. 24, 2020, USCIS implemented the Inadmissibility on Public Charge Grounds final rule nationwide, including in Illinois. USCIS will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date.

The new rule is primarily based on the concept of “self-sufficiency”. According to the USCIS Public Charge website,

Since the 1800s, Congress has put into statute that aliens are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that aliens generally must be self-sufficient. On Aug. 14, 2019, DHS published a final rule regarding how DHS determines if someone applying for admission or adjustment of status is likely at any time to become a public charge.

This final rule also requires immigrants seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that they have not received public benefits (as defined in the rule) over the designated threshold.

For nonimmigrants, status is linked to employment. When employment is terminated, the nonimmigrant is considered out of status. However, in 2017, the USCIS passed a Final Rule that extended the portability provision for certain nonimmigrants including H-1Bs to include certain grace days to look for alternate employment.

In such circumstances, one may be entitled to 60 grace days where the individual is considered to eligible to accept employment and not out of status. See 8 CFR 214.1(l)(2), (3) which state:

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

Clearly, termination of employment may not be the end of the road for non-immigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and the filing for unemployment benefits may be warranted under certain circumstances.

In fact, the question as to whether non-citizens can apply for unemployment benefits is dealt with at the State level by various departments of Labor. For purposes of this article, we have compared the guidance provided by the departments of labor in the states of Connecticut, Massachusetts, New Jersey and New York.

Connecticut

The CT DOL website FAQ section does not address this question. However, a publication from prior years did address the question directly (see Page 8):

Non U.S. Citizens
If you are not a U.S. citizen, you must be in legal alien status now, as well as during the time in which you earned your base period wages, for benefits to be paid. Such individuals will be required to present proof of satisfactory legal alien status as part of the new claim process. There are several documents issued by the Immigration Naturalization Service that are accepted as proof of legal alien status. When you file your claim for benefits, you will be asked for personally identifying information. This information will be verified through SAVE, a federal government database. You do not have to give the agency the information if you do not want to. However, if you do not provide the information, the agency may be required to deny your claim for benefits.

Massachusetts

The Massachusetts DOL addresses this question specifically under the title, Filing for unemployment benefits as a non-U.S. citizen and states:

Verifying your legal authorization to work

If you’re a non-U.S. citizen filing for unemployment benefits, DUA must verify that you are legally authorized to work in the United States. This is required by the Immigration Reform and Control Act of 1986.

Your legal authorization to work will be verified through a computer match with the U.S. Citizenship and Immigration Services (USCIS). The information received from the USCIS may affect your eligibility for unemployment benefits.

New Jersey

New Jersey uses a more direct approach to answer the question in its FAQ section. The relevant section reads as follows:

I currently have a H-1B visa but have lost my job. Am I eligible?

H-1B visa holders are authorized to work in the United States for one specific employer. If you are permanently separated from that employer and your alien status has not changed, you cannot legally work for another employer, so you would be ineligible for benefits. You may be eligible for benefits if you are on a temporary layoff from your employer with a definite return-to-work date.

 

New York

New York also follows a very direct approach. The FAQ section has the following Q&A:

Q: If I am not a US citizen, may I still file a claim?

A: If you are not a U.S. citizen, you may receive unemployment insurance if you:

  • Were working legally when you lost your job
  • Are legally allowed to take a new job
  • Meet the other requirements for UI

New York obviously has the most direct and relevant Q&A. It factors in the final rule that allows the nonimmigrant to legally accept a new job within 60 days.

E-2 EAD, L-2 EAD and H-4 EAD holders could always apply for unemployment benefits.

As to whether applying for unemployment benefits amounts to a public charge is covered in Chapter 10 of the USCIS Policy Manual covering Public Benefits. The USCIS has clearly included unemployment benefits and worker’s compensation in the list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits.

In fact, the USCIS has the following pretty extensive, but non-exhaustive list of benefits that are not considered to fall within the public charge inadmissibility rule.

  • Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI)
  • Social Security
  • Veteran’s benefits including but not limited to HUD-VASH, and medical treatment through the Veteran’s Health Administration
  • Government (including federal and state) pension benefits and healthcare
  • Unemployment benefits
  • Worker’s compensation
  • Medicare; or
  • Federal and state disability insurance.

Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to:

  • Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).
  • Benefits under the Emergency Food Assistance Act (TEFAP)
  • Child and Adult Care Food Program (CACFP)
  • Food Distribution Program on Indian Reservations (FDPIR)
  • Short-term, non-cash, in-kind emergency disaster relief
  • Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations
  • Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether such symptoms are caused by a communicable disease
  • Attending public school
  • Benefits though school lunch or other supplemental nutrition programs including:
    • Benefits through the Child Nutrition Act
    • Benefits from the National School Lunch Act
  • Summer Food Service program
  • Childcare related services including the Child Care and Development Block Grant Program (CCDBGP)
  • Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
  • Children’s Health Insurance Program (CHIP) and State Children’s Health Insurance Program (SCHIP)
  • Health Insurance through the Affordable Care Act
  • Tax Credits
  • Transportation vouchers or other non-cash transportation services
  • Housing assistance under the McKinney-Vento Homeless Assistance Act
  • Energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Educational benefits, including, but not limited to, benefits under the Head Start Act
  • Student loans and home mortgage loan programs; and
  • Foster care and adoption benefits

The USCIS Policy Manual goes on to state, “As there are multiple federal and state public benefits programs, USCIS is unable to list all programs not included within the public charge inadmissibility determination.”

The USCIS has also updated its Public Charge Website with additional guidance on the COVID-19 issue and seeking medical attention.

USCIS specifically states on its website:

To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related 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 (e.g. federally funded Medicaid).

However, as with any public policy statement put out by the USCIS, it is best to err on the side of caution when seeking public benefits. Check with a local attorney specializing in such matters, or your immigration attorney for case specific guidance on what is appropriate and applicable to your unique set of circumstances. This article is meant to provide general guidance and should not be used in place of case specific legal advice.