By Catherine V. Wadhwani and Robert S. Whitehill
Without fanfare, U.S. Citizenship and Immigration Services (USCIS) recently updated its website with an Alert https://www.uscis.gov/greencard/public-charge relating to its Public Charge requirements in the context of the Novel Corona Virus Disease (COVID-19) pandemic. As concerns about the spread of COVID-19 in the U.S. increase, USCIS recognized that those grappling to fully understand its recent Public Charge Rule may be so concerned about the impact on their immigration status that they may refrain from seeking needed medical care.
Readers may recall that on January 27, 2020, the U.S. Supreme Court lifted injunctions imposed by several lower Courts that had prevented implementation of USCIS’s October 2019 Inadmissibility on Public Charge Grounds Final Rule. The Supreme Court’s action allowed the Pubic Charge Rule to take effect with regard to filings received by USCIS on or after February 24, 2020. The Rule affects most I-485 Adjustment of Status applications, as well as many filings by or on behalf of foreign nationals who are in the U.S. in temporary statuses and seeking an extension of stay or change of status.
In the posted Alert, USCIS “…encourages all…including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services.” The Alert then offers this, “Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.” And further, “The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19…”
Next, the Alert explains that the receipt of public benefits is only one of many factors considered in a totality of the circumstances review, then it specifically addresses the point at-issue saying:
To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge admissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).
While the first part of the Alert seems clear, the remaining part of the Alert raises confusion. The final paragraph of the Alert explains that USCIS is required by its Public Charge Rule to consider the receipt of certain public benefits, “including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination, and for purposes of a public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status.”
This part of the Alert also specifies that “most forms of federally funded Medicaid (for those over 21)” are public benefits that must be considered under the Public Charge Rule, while listing those that are not included (CHIP, State, local or tribal public health care services / assistance that are not funded by Medicaid). Does this mean that USCIS will consider the use of COVID-related public benefits but due to the compelling need for people to seek medical care when needed, they will not deem it a negative factor?
The Alert mentions that a person filing an I-485 Application for Adjustment of Status “may submit a statement…to explain how [COVID-19] affected the alien as relevant to the factors USCIS must consider in a public charge inadmissibility determination.” The example provided is of a person who is prevented from working or attending school due to disease prevention methods such as social distancing or quarantines or where an employer, school or university voluntarily shuts down operations to prevent the spread of COVID-19. If a person in this situation includes an explanation and supporting documents in their application, USCIS states that it will ‘to the extent relevant and credible”, consider this evidence in its totality of the circumstance analysis for that individual.
Affected individuals should be sure to maintain very clear documentation of COVID-19 related factors that affect their immigration status and the use of any public benefits so that it can be included in their Adjustment Applications as stated above, or as otherwise needed for their applications.
If you have questions regarding this topic, please reach out to Catherine Wadhwani at firstname.lastname@example.org or Robert S. Whitehill at email@example.com or any member of the firm’s immigration practice group. Both Mr. Whitehill and Ms. Wadhwani are located in Fox Rothschild’s Pittsburgh office and may also be reached at 412-391-1334.