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Unemployment Benefits, Stimulus Checks & Public Charge

| Apr 29, 2020 | Blog

The Trump Administration’s “public charge” rule went into effect on February 24, 2020. Shortly after, there were two events that have caused concern among my clients and their ability to obtain immigration benefits. In the first event, in March, with the vast majority of states under some form of a stay-at-home order, businesses laid off millions of workers. These mass layoffs have driven workers to apply for unemployment benefits in record numbers. The second event comes on April 11, with record levels of unemployment, the IRS deposited the first stimulus checks in many taxpayers’ bank accounts. So, does receipt of either benefit make a foreign national ineligible for a visa or a green card?

The government will not consider unemployment benefits for inadmissibility purposes.

First, we examine unemployment benefits and their effect a foreign national’s eligibility for a visa or green card. An individual earns unemployment benefits. For instance, in Ohio, an individual must work a minimum of 20 weeks full or part-time during the base period before becoming eligible for unemployment benefits. In recognition of this fact, USCIS has confirmed the exclusion of unemployment benefits from any public charge analysis.

Stimulus checks are not a “public benefit” and should have no effect on immigration eligibility.

Next, we consider the impact of stimulus checks on an applicant’s admissibility. Although USCIS has yet to clarify if they will consider acceptance of a stimulus check as a public benefit for inadmissibility purposes, I firmly believe it should not.

Who is eligible for a stimulus check?

Under the CARES Act, if the foreign national has a valid Social Security number and meets the IRS definition of a “resident alien,” s/he is eligible for a stimulus check. However, the IRS exempts explicitly certain individuals temporarily present in the United States from the definition of resident alien. Namely, individuals here on F, J, M, or Q visas are not resident aliens. However, other work-authorized nonimmigrants such as; TN, H-1B, O-1, L-1; are not exempt and can qualify as a resident alien.

Also ineligible for a stimulus check, are individuals filing taxes with an ITIN. The IRS issues ITINs to individuals who are ineligible for a Social Security number. These taxpayers include unauthorized immigrants as well as those lawfully present in the United States, such as certain survivors of domestic violence, Cuban and Haitian entrants, and spouses and children of individuals here on work visas.

Also ineligible for a stimulus check are families of mixed status. That is, the CARES Act expressly denies a stimulus check to an eligible individual with a Social Security number if that individual also files jointly with a spouse who has an ITIN or filed a return with a dependent child with an ITIN. On April 24, 2020, a man married to an unauthorized immigrant filed a lawsuit in the Illinois federal court challenging the constitutionality of this provision of the CARES Act. If this provision is enjoined or overturned, mixed-status families would be eligible for stimulus checks.

Will receipt of a stimulus check impact my immigration application under the Public Charge Rule?

Receipt of a stimulus check will very likely not have any adverse impact on immigration applications. First, the Treasury Department has structured these stimulus checks as an advanced 2020 tax credit. Therefore, it does not fall under the category of income maintenance for admissibly purposes. The DHS Public Charge Rule is clear that tax credits are not to be taken into account. Similarly, the DOS has stated that tax credits are not considered in their version of the Public Charge Rule.

Second, receipt of a stimulus check is not something that can be requested; the government simply sends it to you. For individuals who have authorized the IRS to make direct deposits into their bank account, there is no way for them to refuse or return the deposit. The same is true of individuals who will receive the check by mail; there is no way for them to communicate with the Treasury Department to refuse the check before receipt.

If you have questions about your eligibility for a stimulus check or your admissibility under the Public Charge Rule, contact our office to schedule a case evaluation with one of our Ohio immigration lawyers eligible to practice immigration law throughout the United States.