Public Charge: Are Unemployment Benefits Permitted?

UPDATE:   A new revised Final Rule is in effect starting December 23, 2022.  Please review this updated content.

In light of the Coronavirus/Covid-19 pandemic and the resulting millions of workers (at least temporarily) losing their job, our office has been flooded with calls and emails about whether claiming unemployment insurance will give rise to inadmissibility under the Public Charge rule.     The short answer is that claiming state-based unemployment insurance benefit, if one is eligible for it, does not normally constitute a public charge for immigration purposes.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Public Charge – Definition

In its Inadmissibility on Public Charge Grounds final rule USCIS 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).

Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to receive one or more of the 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).   Furthermore, adjudicators are directed to look at the public charge factors and to weigh positive and negative factors by weighing age, health, family status, assets and resources, education and skills, among others.

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS will consider only public benefits listed in the rule, including:

• 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)

Benefits Not Subject to Public Charge Consideration

• Emergency medical assistance;
• Disaster relief;
• National school lunch programs;
• The Special Supplemental Nutrition Program for Women, Infants, and Children ;
• The Children’s Health Insurance Program;
• Subsidies for foster care and adoption;
• Government-subsidized student and mortgage loans;
• Energy assistance;
• Food pantries and homeless shelters; and
• Head Start.

Unemployment Insurance Benefits Are Normally Not Subject to Public Charge

Unemployment insurance benefits are not generally taken into consideration by the USCIS for purposes of making a public charge determination.  As USCIS explained in its final rule on inadmissibility on public charge grounds,

DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.

Additionally, the USCIS Policy Manual states that unemployment benefits are not considered by USCIS in a public charge inadmissibility determination as unemployment insurance is considered by USCIS as an “earned” benefit.   See USCIS Policy Manual, Volume 8, Part G, Chapter 10.

As a result of the definitions laid out in the final rule and the USCIS Policy Manual, claiming unemployment insurance benefits (if otherwise eligible for it) should not lead to a public charge determination.   The unemployment benefit insurance program is administered by the states who pick up the cost of providing the unemployment insurance initially (normally 26 weeks).  After this period, the federal government pays for the cost of the unemployment insurance up to a certain maximum number of weeks.

Eligibility for unemployment insurance varies slightly by state and also as to whether the benefits are paid by the state (during the first 26 weeks) or by the federal government (afterwards).

We should caution, however, that losing one’s job may create factors which would weigh negatively during a public charge analysis.   For example, many workers obtain health insurance through their employment and not having health insurance, especially with medical conditions, is a negative factor for public charge.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (contact us or schedule a phone consultation to analyze your case) before accepting benefits which may be deemed to be public charge.