ROC: CARES Act & Public Charge

[initials123 6]

Hi folks, 

I've been living in WA on a CR-1 since May 2018. I'm currently applying for ROC and received the 18 month extension letter a few weeks ago. My question is about the public charge rule. I've been self-employed for most of my time here, but my income has stopped thanks to the Covid-19 pandemic. Since the CARES Act has expanded Unemployment Insurance (UI) to the self employed, I was going to apply for Pandemic Unemployment Assistance (PUA), but I am very nervous about it contributing towards public charge inadmissibility. From everything I've read, receiving UI payments does not make you a public charge if you were in regular employment, because your employer was paying into UI, therefore it is an "earned benefit", not government assistance. And the CARES Act has expanded UI to include self-employed, which is great, but it doesn't change the fact that the self-employed never contributed to UI. SO... if you're self employed and receiving UI, is it still considered an "earned benefit" , or considered government assistance and invoke the public charge rule? Am I overthinking this?! 

[geowrian 22,335]

1) Public charge is not an issue for ROC or naturalization.

2) PUA is not  a public benefit for public charge consideration.

[faustt 21]

I believe there were several posts about this mentioned that UI or Pandemic Assistance is not tested under public charge rule

[initials123 6]

22 hours ago, geowrian said:

1) Public charge is not an issue for ROC or naturalization.

2) PUA is not  a public benefit for public charge consideration.

Thanks, I was hoping that was the case. Much appreciated!

21 hours ago, faustt said:

I believe there were several posts about this mentioned that UI or Pandemic Assistance is not tested under public charge rule

Great, thanks

[fromthewater 11]

On 5/20/2020 at 12:32 PM, geowrian said:

1) Public charge is not an issue for ROC or naturalization.

2) PUA is not  a public benefit for public charge consideration.

Can you share any official materials from USCIS or related agencies that ROC and Natualization won't be affected by public charge? And so what/ who does public charge impact?

 

I have always thought that you are not supposed to use public charge benefits while being a permanent resident? And that causes the worry of GC being revoked, RoC denied, or naturalization dinied due to public charge?

[geowrian 22,335]

2 hours ago, fromthewater said:

Can you share any official materials from USCIS or related agencies that ROC and Natualization won't be affected by public charge? And so what/ who does public charge impact?

I would ask "what official material says ROC or naturalization applicants are impacted?" Unless there is something stating it does, no such requirement exists.

 

That said, there is a provision that permits deporting an alien due to becoming a public charge. However, the scope of it is extremely narrow in practice. See the INA section (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1227&num=0&edition=prelim😞

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(5) Public charge

Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.

So they would need to have become a public charge within 5 years of entry and not have had it be due to anything that happened since entry.

In practice, this would only occur if (https://www.ilrc.org/sites/default/files/resources/overview_of_public_charge_and_benefits-march2020-v3.pdf😞

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In practice, very few people have been put into removal proceedings or removed based on this deportability ground. Cases have held that a person does not become deportable under the public charge ground for simply having received a public benefit. Rather, case law establishes three requirements that must be present for a person to be removed as a public charge: 1) the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment, 2) the public entity must demand repayment, and 3) the immigrant must refuse to pay for the cost demanded by the public entity.

 

The new rule implemented on February 24, 2020 does not alter the public charge ground of deportability. Thus, permanent residents are not likely to have a public charge issue unless they travel outside the U.S. There is no public charge test to naturalize, and the inadmissibility ground discussed in this advisory can only impact a lawful permanent resident that travels outside the United States for more than 180 days.16

The requirements to actually be deported as an LPR here make it quite difficult to actually occur.

Public charge impacts people applying for a visa or admission, those applying for a COS or EOS, or those applying for AOS.

ROC and naturalization do not fall under this. They can review your immigration history and see if there were mistakes made in the past, but being a public charge now does not fall under that.

 

Side note: There is the provision above about an LPR that travels abroad for 180+ days that could fall under this. LPRs abroad for 180+ days technically are applying for admission when they return, and therefore they are subject to this. However, in practice I have not need this ever be an issue (CBP doesn't have an effective means to evaluate this for an LPR), unless maybe if they were paroled into the country for another reason pending a decision by an immigration judge (i.e. if they potentially abandoned their permanent residence).

 

And if one has an I-864 sponsor (not all immigrants had to have one), an argument is that they need to go through them for repayment anyway.

 

2 hours ago, fromthewater said:

I have always thought that you are not supposed to use public charge benefits while being a permanent resident? And that causes the worry of GC being revoked, RoC denied, or naturalization dinied due to public charge?

You are not supposed to use certain public benefits within the first 5 years. Generally one does not qualify for most federal public benefits that would be an issue here anyway.

Also, the definition of what is a public charge was changed recently by the new rule - just occasionally using benefits alone does not make you one. https://www.uscis.gov/news/public-charge-fact-sheet

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Under the final rule, a public charge is defined as an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.   

I would also add that PUA (and al of UC as a whole) is not listed as a public benefit considered for the above.

[fromthewater 11]

On 5/21/2020 at 7:30 PM, geowrian said:

And if one has an I-864 sponsor (not all immigrants had to have one), an argument is that they need to go through them for repayment anyway.

 

You are not supposed to use certain public benefits within the first 5 years. Generally one does not qualify for most federal public benefits that would be an issue here anyway.

An affidavit of support is a legally enforceable contract, and the sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or is credited with 40 quarters of work (usually 10 years).

 

-

I do believe some can qualify for Medicaid within the first 5 years?

So then, what would count towards public charge?

 

1) you applied and are approved for Medicaid, but fortunately, you never used it a single time. - would being approved for medicaid and on an insurance plan without using any benefit count as public charge? Or because you never actually used it, it's not public charge?

 

2) you applied and are approved for Medicaid, but you never used it until the few time(s) you ran into Emergency medical issues and needed assistance. - emergency medical assistance is excluded as public charge.

But does the exclusion protect people who "not have ever applied, and only applied when emergency occurred," or does it also exclude people "who applied and approved without emergency, but only used the benefit during medical emergency"?

 

3) "The final rule defines public charge as an alien who receives one or more public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)." Does receives benefits for more than 12 months mean "on a medicaid plan for more than 12 months without using it" or does it mean "on and have used the plan's benefits for more than 12 months?"

Edited May 28, 2020 by fromthewater

[geowrian 22,335]

1 hour ago, fromthewater said:

I do believe some can qualify for Medicaid within the first 5 years?

So then, what would count towards public charge?

Yes, there are certain Medicaid benefits available to certain aliens within 5 years.

First thing is to separate public benefits from public charge. You can use certain public benefits without being a public charge. Only certain public benefits are considered for public charge purposes.

See https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet for a summary.

One such thing to note is that it is only federally funded Medicaid that is a public benefit for that purpose. Some states (namely CA and NY) use state funds for immigrants within the first 5 years, so those would not be an issue. The USCIS policy manual points this out as well. Other states may have similar programs for specific circumstances (I believe at least a few have similar state-funded assistance for pregnancy).

 

Even within that, certain forms of Medicaid are allowed. Emergency Medicaid is not a public benefit for the public charge purpose.

This is from the FAM as I have the link readily accessible, but I'm sure USCIS has the same provision: https://fam.state.gov/FAM/09FAM/09FAM030208.html

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(5) (U) Medicaid under 42 U.S.C. 1396 et seq., except for:

(a)  (U) benefits received for an emergency medical condition as described in section 1903(v) of Title XIX of the Social Security Act (42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c));

(b)  (U) services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et seq.);

(c)  (U) school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;

(d)  (U) benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy); and

 

Additionally, the use of these benefits by certain individuals is not considered for public charge purposes, such as members of the armed forces, children of USCs, and certain self-petitioners (i.e. VAWA).

 

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1) you applied and are approved for Medicaid, but fortunately, you never used it a single time. - would being approved for medicaid and on an insurance plan without using any benefit count as public charge? Or because you never actually used it, it's not public charge?

No, this would not make somebody a public charge.

Edit: Sorry, I missed where it said "and on an insurance plan". The insurance plan is the benefit. Having made a claim via the plan is not relevant for usage consideration. You "used" it by enrolling in the plan.

 

Note the current definition of a public charge again:

Quote

"Public charge" means an applicant who receives one or more defined public benefits for more than 12 months in the aggregate within any 36-month period. 

So if you never used any such benefit, you could not be a public charge. You must have actually used it for more than 12 months over a 36 month period to have been one.

(Note that this is different than applying for a benefit like a green card, in which they determine if you are likely to become a public charge...not necessarily having actually been one in the past.)

 

Quote

2) you applied and are approved for Medicaid, but you never used it until the few time(s) you ran into Emergency medical issues and needed assistance. - emergency medical assistance is excluded as public charge.

But does the exclusion protect people who "not have ever applied, and only applied when emergency occurred," or does it also exclude people "who applied and approved without emergency, but only used the benefit during medical emergency"?

Same as above - you would have had to actually used one of the listed public benefits (of which Emergency Medicaid is not included) for at least 12 months over a 36 month period.

 

Quote

3) "The final rule defines public charge as an alien who receives one or more public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)." Does receives benefits for more than 12 months mean "on a medicaid plan for more than 12 months without using it" or does it mean "on and have used the plan's benefits for more than 12 months?"

It means having actually received those benefits for 12+ months over a 36 month timeframe, at any point.

 

I'm unsure what you mean by "on a medicaid plan for more than 12 months without using it".

If it means having been approved to enroll but never enrolling, then that time would not count. You never actually used the benefit.

If it means being covered by a Medicaid plan but not making a claim via it, that time while covered/enrolled would count. You would have received the benefit of coverage.

Edited May 28, 2020 by geowrian

[fromthewater 11]

On 5/28/2020 at 3:42 PM, geowrian said:

Yes, there are certain Medicaid benefits available to certain aliens within 5 years.

First thing is to separate public benefits from public charge. You can use certain public benefits without being a public charge. Only certain public benefits are considered for public charge purposes.

See https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet for a summary.

One such thing to note is that it is only federally funded Medicaid that is a public benefit for that purpose. Some states (namely CA and NY) use state funds for immigrants within the first 5 years, so those would not be an issue. The USCIS policy manual points this out as well. Other states may have similar programs for specific circumstances (I believe at least a few have similar state-funded assistance for pregnancy).

 

Even within that, certain forms of Medicaid are allowed. Emergency Medicaid is not a public benefit for the public charge purpose.

This is from the FAM as I have the link readily accessible, but I'm sure USCIS has the same provision: https://fam.state.gov/FAM/09FAM/09FAM030208.html

 

Additionally, the use of these benefits by certain individuals is not considered for public charge purposes, such as members of the armed forces, children of USCs, and certain self-petitioners (i.e. VAWA).

 

No, this would not make somebody a public charge.

Edit: Sorry, I missed where it said "and on an insurance plan". The insurance plan is the benefit. Having made a claim via the plan is not relevant for usage consideration. You "used" it by enrolling in the plan.

 

Note the current definition of a public charge again:

So if you never used any such benefit, you could not be a public charge. You must have actually used it for more than 12 months over a 36 month period to have been one.

(Note that this is different than applying for a benefit like a green card, in which they determine if you are likely to become a public charge...not necessarily having actually been one in the past.)

 

Same as above - you would have had to actually used one of the listed public benefits (of which Emergency Medicaid is not included) for at least 12 months over a 36 month period.

 

It means having actually received those benefits for 12+ months over a 36 month timeframe, at any point.

 

I'm unsure what you mean by "on a medicaid plan for more than 12 months without using it".

If it means having been approved to enroll but never enrolling, then that time would not count. You never actually used the benefit.

If it means being covered by a Medicaid plan but not making a claim via it, that time while covered/enrolled would count. You would have received the benefit of coverage.

Thank you! That's very detailed and helpful.

 

Lastly,

1) how does one find out whether their (let's say CA) county Medi-Cal is funded by FED or State? And even if it's funded by FED, you mentioned some states fund benefits for aliens under 5 years of residency - how to know whether their benefit will be using FED or State funding?

 

2) Who should worry about being a Public Charge?

 - Conditional GC holder?

 - GC holder who is in process of RoC?

 - GC holder with conditions removed?

 - GC holder who didn't get GC through Family Based?

 - GC holder who is applying for naturalization?

[geowrian 22,335]

40 minutes ago, fromthewater said:

Lastly,

1) how does one find out whether their (let's say CA) county Medi-Cal is funded by FED or State? And even if it's funded by FED, you mentioned some states fund benefits for aliens under 5 years of residency - how to know whether their benefit will be using FED or State funding?

How would you know? You would research the details of the benefit. Namely, determine if the 5 year restriction applies or not, and/or the source of funding.

For instance, CA has these guides: https://www.coveredca.com/individuals-and-families/getting-covered/immigrants/ and https://www.dhcs.ca.gov/services/medi-cal/eligibility/Pages/Medi-CalFAQs2014b.aspx

 

NY has this: https://www.health.ny.gov/health_care/medicaid/publications/docs/gis/08ma009att.pdf

Quote

Qualified Aliens who are Eligible for State Medicaid until becoming Eligible for Federal Medicaid after a Five Year Waiting Period: Qualified aliens listed below, who entered the U.S. before August 22, 1996, are eligible for federal Medicaid, if otherwise eligible. However, qualified aliens in these four categories who entered the U.S. on or after August 22, 1996, are subject to the federal five year ban. This means that they are not eligible for federally funded Medicaid until they have resided in the U.S. for five years in a qualified alien status. Until becoming eligible for federally funded Medicaid, these qualified aliens are eligible for State funded Medicaid coverage of all medically necessary care and services, if they meet the program’s other eligibility requirements.

...

During their first five years in the U.S the cost of their Medicaid coverage will be born solely by State and local shares (50% State/50% local). Once a qualified alien in this group has resided in the United States as a qualified alien for a period of five years, FFP will become available. This means the federal government will pay a share of their Medicaid costs.

You can also call them and ask (and always verify whatever they say).

 

40 minutes ago, fromthewater said:

2) Who should worry about being a Public Charge?

 - Conditional GC holder?

 - GC holder who is in process of RoC?

 - GC holder with conditions removed?

 - GC holder who didn't get GC through Family Based?

 - GC holder who is applying for naturalization?

Any alien can become a public charge. But as noted above, in practice for it to be an issue with a GC holder is exceedingly rare as it has to fall within the parameters previously described.

The "type" (conditional or not) of green card does not matter. ROC and naturalization does not matter.

If somebody becomes a USC, then they no longer are subject to removal.

 

The public charge issue is almost always only an issue when seeking a benefit (permanent residency or a visa/status) based upon being likely or to to become a public charge in the future.

[fromthewater 11]

3 minutes ago, geowrian said:

in practice for it to be an issue with a GC holder is exceedingly rare

 

as it has to fall within the parameters previously described.

What are some cases of GC holder unable to naturalize due to being a public charge? Is there any? Or in removal proceeding?

Otherwise, safe to say GC holder almost won't need to worry about Public Charge law?

 

Parameter - Are you referring to the "12+ months over a 36-month timeframe"? That seems fairly easy to reach... Or you're probably referring to something else?

 

 

[geowrian 22,335]

7 hours ago, fromthewater said:

What are some cases of GC holder unable to naturalize due to being a public charge? Is there any? Or in removal proceeding?

I have no examples of a GC holder being unable to naturalize due to anything related with being a public charge (because no such restriction exists). https://www.nolo.com/legal-encyclopedia/will-receiving-public-benefits-hurt-your-chances-us-citizenship.html

 

I'm not personally aware of somebody being removed due to being a public charge, but that is something that is technically possible and has likely happened at some point in the past.

But they would need to meet the criteria noted previously.

 

7 hours ago, fromthewater said:

Parameter - Are you referring to the "12+ months over a 36-month timeframe"? That seems fairly easy to reach... Or you're probably referring to something else?

I'm referring to:

"1) the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment, 2) the public entity must demand repayment, and 3) the immigrant must refuse to pay for the cost demanded by the public entity."

and

"Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable."

 

So it would need to be within the first 5 years of becoming a GC holder, not caused by anything that happened after becoming a GC holder,  must be able to be sued (the I-864 sponsor(s) come into play here), must have actually demanded repayment, and must refuse (not just being unable) to pay the cost demanded.

[fromthewater 11]

15 hours ago, geowrian said:

I have no examples of a GC holder being unable to naturalize due to anything related with being a public charge (because no such restriction exists). https://www.nolo.com/legal-encyclopedia/will-receiving-public-benefits-hurt-your-chances-us-citizenship.html

 

I'm not personally aware of somebody being removed due to being a public charge, but that is something that is technically possible and has likely happened at some point in the past.

But they would need to meet the criteria noted previously.

 

I'm referring to:

"1) the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment, 2) the public entity must demand repayment, and 3) the immigrant must refuse to pay for the cost demanded by the public entity."

and

"Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable."

 

So it would need to be within the first 5 years of becoming a GC holder, not caused by anything that happened after becoming a GC holder,  must be able to be sued (the I-864 sponsor(s) come into play here), must have actually demanded repayment, and must refuse (not just being unable) to pay the cost demanded.

So sound like - GC holder wouldn't have problem naturalizing, but they could potential get removed.

 

The payment must have been demanded, and refused to be paid - before anyone being subjected to removal?

So what happens when I-864 sponsor refused to pay? Technically, the sponsor had already signed an affidavit that they would pay. Secondly, if they go against their affidavit and refuse to pay, it is technically not the immigrant's fault?

Also, I imagine the sponsor will eventually have to pay through owing money to the IRS?