Ask Sophie™: Is unemployment considered a public benefit?

Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie: I have an H-4 visa and work authorization. I currently have a job that’s considered nonessential during the coronavirus emergency. If I get laid off, I would need unemployment assistance while I look for another job.

Would getting unemployment benefits hurt my or my spouse’s green card petition under the new public charge rule?

— Nonessential in NorCal

Dear Nonessential:

Thanks for your timely question. The short answer is no, getting unemployment benefits alone right now won’t jeopardize your or your spouse’s green card. This is because receiving unemployment benefits, getting tested for coronavirus and seeking emergency medical treatment (even if it’s covered by Medicaid) are all exempt from consideration as government benefits under the new public charge rule.

Immigration officials have long had the authority to deny individuals a visa or green card if they are likely to be dependent on public benefits. The new public charge rule, which went into effect on February 24, expands the factors immigration officials will consider. An additional form seeking health and financial information must now be submitted with most visa and green card applications. Immigration officials will use that information to determine whether applicants are or are likely to become dependent on government benefits.

If you have received a public benefit in the past, your application won’t necessarily be denied, but given what’s at stake, it’s important to consult an experienced immigration attorney.

Individuals who will be subjected to the increased scrutiny of the expanded public charge rule are:

• Most green card candidates
• Candidates for work visas who are living abroad and looking to come to the U.S.
• Those changing to another visa while living in the U.S.
• Those seeking a visa extension to remain in the U.S.
• Returning green-card holders if they have been outside of the U.S. longer than 180 days

Some individuals are exempt from the public charge rule, including refugees, asylees, those petitioning for a green card under the Violence Against Women Act (VAWA) and certain Afghan or Iraqi nationals.

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Under the new rule, immigration officials will consider a “public charge” anyone who received a public benefit for more than 12 months within a three-year period — or who may do so in the future. Any of these are now considered a government-funded benefit:

• Any federal, state or local cash assistance, including General Assistance, Supplemental Security Income (SSI) and Supplemental Nutrition Assistance Program (SNAP)
• Temporary Assistance for Needy Families (TANF)
• Section 8 housing and rental assistance
• Most forms of Medicaid

Immigration officials will not consider these as government benefits:

• Disaster relief (including the COVID-19 exceptions mentioned above)
• Unemployment benefits or workers’ compensation
• Emergency medical assistance, even for treatment covered by Medicaid
• Tax-related cash benefits
• Government-subsidized student and mortgage loans
• Energy assistance
• Any benefits received by children under the age of 18, including school lunch programs and Head Start
• Special Supplemental Nutrition Program for Women, Infants, and Children
• The Children’s Health Insurance Program
• Any benefits received by anyone enlisted in the U.S. armed forces or their spouse
• Subsidies for foster care and adoption
• Food pantries and homeless shelters
• Services funded by Medicaid received under the Individuals with Disabilities Education Act, by an individual under 21 years, or by a woman during pregnancy or for 60 days starting on the last day of pregnancy

Immigration officials will now require information and supporting documents to assess your financial prospects and whether you may become a public charge in the future, including your:

• Age: Being under 18 years old, the minimum age for full-time employment or older than 61, the minimum retirement age for Social Security, or close to retirement age are considered negatives.
• Health: Immigration officials will look for medical conditions that could affect your ability to work.
• Family status: Officials will consider the number of children or other dependents you support.
• Assets, resources and financial status: Officials will assess household income, assets and liabilities, requiring information including a U.S. credit report or proof of no credit history, your credit score and whether the household has private health insurance or enough resources to cover future medical costs.
• Education and skills: Officials will look at your education, skills and proficiency in English as an indication you can obtain or maintain employment.
• Visa: Officials are looking at your prospective immigration status and expected period of admission.
• Form I-864, Affidavit of Support: Officials are looking to see whether or not you have a joint sponsor and how close your relationship is.

The adjudication process for these considerations is still under development. It’s unclear exactly how officials will weigh each factor as it will be done on a case-by-case basis and at the discretion of each adjudicating officer at the time of interview.

Clearly, household income is a key indicator of self-sufficiency. Under the new rule, immigrants are expected to show that their household income is at least 125% of the Federal Poverty Guidelines. For a family of four, that means a household income of $32,750 or more. Immigration officials will consider having work authorization and a job with an annual income of 250% — or $65,500 — of the poverty guidelines as favorable. These income levels are low considering the cost of living in many areas.

How can you put your best foot forward? Talk to your lawyer about any public benefits you’ve received in the past before applying for any new ones. Allot enough time to fill out the form and gather documents and supporting evidence. Government officials estimate each form will take 4.5 hours to complete. However, most legal experts expect it will take six to 10 hours or more.

If you are the visa or green card candidate and have unpaid bills, delinquent loan payments or errors on your U.S. credit report, take action to fix those negative items. Request that the credit agency correct any errors on your credit report. And be sure to keep copies of your correspondence with the credit agency.

I hope your company won’t have to resort to layoffs, particularly because layoffs can jeopardize the company’s future ability to sponsor an employee for a green card or get other immigration benefits. Moreover, your employer may be eligible for a small business loan under the federal coronavirus relief legislation depending on its size and circumstances, as well as loan forgiveness if it keeps you and other employees on its payroll.

Be well and stay safe!

Sophie

Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!