Many of our clients who are legally working in the US and paying taxes have inquired as to whether or not receipt of the 1 time payments under the CARES Act i.e. $1200 would be considered the receipt of public benefits and subject them to a finding of being a public charge ? The short answer is no. The American Immigration Lawyers Association (AILA) has provided a more detailed opinion below:
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package. The package offers relief to state and local governments, individuals, small and large businesses, and hospitals affected by the 2019 novel coronavirus (COVID-19) pandemic. In particular, the CARES Act provides for the issuance of one-time payments, called recovery rebates, (or commonly known as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic. Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17.
The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS final rule on inadmissibility on public charge grounds is clear that tax credits are not taken into account for the purpose of a public charge determination. DHS indicates in its final rule that only public benefits as defined in 8 CFR 212.21(b) will be considered in the public charge inadmissibility determination. 8 CFR 212.21(b) defines a public benefit to include means-tested programs like Medicaid and cash assistance for income maintenance, however 8 CFR 212.21(b) indicates that cash assistance for income maintenance does not include tax credits. Furthermore, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that tax credits are not considered public benefits in a public charge inadmissibility determination.
Similarly, the Department of State (DOS) Interim Final Rule and the Foreign Affairs Manual (FAM) align with the DHS final rule in that the DOS interim final rule and FAM indicate that for the purposes of defining “public benefit”, cash assistance for income maintenance does not include tax credits. AILA’s DOS Liaison Committee is seeking additional clarification from DOS regarding how consular officers will factor in tax credits in public charge determinations at U.S. consulates overseas.