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Should Foreign Employees Accept CARES Act Payments?

According to the U.S. Department of the Treasury, the CARES Act provides for Economic Impact Payments to American households of up to $1,200 per adult for individuals whose income was less than $99,000 ( or $198,000 for joint filers) and $500 per child under 17 years old – or up to $3,400 for a family of four.

Some H-1B and other foreign employees will wonder whether accepting a CARES Act payment would cause USCIS to consider them likely to become a “public charge,” which might affect their eligibility for nonimmigrant (H-1B) status and/or immigrant (permanent residence) status. The short answer is, I do not expect USCIS to make an issue of someone’s receipt of a CARES Act payment, but cannot guarantee it.

Several legal analyses examine the question and argue persuasively that a CARES Act payment would not cause USCIS to find that an applicant is likely to become a “public charge.” This argument is based on the fact that Congress characterized Cares Act payments as tax credits, while USCIS’ public charge rule generally defines a public benefit as “any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits).” It would seem clear from this analysis that it is safe for a non-US citizen to accept a CARES Act payment.

Personally, I would keep the payment for myself. However, USCIS has not specifically pronounced Cares Act payments as safe to accept, while it has done so for unemployment benefits. By keeping a payment, an employee would be relying on a judgment call, which always involves some risk. I think it is a small risk, but nonetheless a risk. Each client must decide what makes sense individually.

Contact one of the attorneys of Deutsch, Killea and Eapen, Immigration Law Firm, if you have any questions about the new Proclamation.

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