A number of questions have arisen about how receipt of certain services or payments during the COVID-19 pandemic might constitute receipt of a public benefit that could trigger a public charge determination or the public benefit condition (see NAFSA's page for background on the public charge/public benefit regulations). Here is a brief presentation of the basic issues.
Medical Treatment for COVID-19. On March 14, 2020, USCIS placed a Coronavirus alert on its public charge page that begins: "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."
2020 Recovery Rebates. Generally, legal experts seem to agree that receipt of a CARES Act 2020 Recovery Rebate (stimulus check) by a nonimmigrant who is a resident for tax purposes under the Substantial Presence Test and who filed a tax return with a valid Social Security Number would not constitute receipt of a public benefit that could trigger a public charge determination or the public benefit condition. They point to the fact that a CARES Act 2020 Recovery Rebate is characterized as a "tax credit" for the 2020 tax year, and the definition of "public benefit" at 8 CFR 214.21(b)(1) excludes tax credits from the list of public benefits (the regulation defines public benefit to include "Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits)"). For background on eligibility for the 2020 recovery rebate, see the CRS Insight Report: Noncitizens and Eligibility for the 2020 Recovery Rebates (May 1, 2020). IRS has also posted information on how to return an erroneously received recovery rebate to IRS. Individuals who erroneously received a recovery rebate because they mistakenly filed a Form 1040 rather than a Form 1040NR should also consult a tax specialist for information on filing an amended return.
Unemployment Payments. Eligibility for unemployment benefits due to a COVID-19 related separation from or reduction in employment is a more complicated question, because it involves both state and federal law. An April 7, 2020 Congressional Research Service (CRS) Legal Sidebar reviews immigration-related eligibility criteria for recovery rebates and unemployment compensation under the CARES Act. It is helpful to know that the USCIS Policy Manual at 10 USCIS-PM B.1 includes "Unemployment benefits" and "Worker’s compensation" in its "non-exhaustive list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits."
Higher Education Emergency Relief Fund - Student Aid. CARES Act Section 18004(a)(1) and 18004(c) establish and funds the Higher Education Emergency Relief Fund (HEERF). Section 8004(c) directs institutions of higher education to use no less than 50 percent of funds received under Sections 18004(a)(1) and 18004(c) of the CARES Act to provide emergency financial aid grants to students for expenses related to the disruption of campus operations due to coronavirus. FAQ 9 of the Department of Educations's April 21, 2020 Frequently Asked Questions about the Emergency Financial Aid Grants to Students under Section 18004 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act limits receipt of HEERF payments to individuals who have filed a FAFSA or are eligible to file a FAFSA, which would exclude nonimmigrants such as F-1 students and J-1 exchange visitors because they are not eligible for federal financial aid and therefore not eligible to file a FAFSA.
Remember that this is just a basic presentation of information and does not constitute legal or accounting advice.
- Individuals with tax questions should seek advice from a tax specialist.
- Individuals with questions about eligibility for unemployment benefits should seek guidance from a human resources or employment law specialist.
- Assessing whether an individual might be considered a public charge or subject to the public benefits condition usually arises in contexts outside the scope of direct international student and scholar advising duties (i.e., in the context of visa applications, adjustment of status, change of status, and extension of stay applications). While understanding the basic factors involved in public charge determinations is helpful, students, scholars, and their families should consult an experienced immigration lawyer for assistance with their detailed questions and requests for immigration strategy, support and representation.