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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.

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.

At Deutsch, Killea and Eapen, we usually provide our clients the most conservative advice, geared toward avoiding all risk if possible. But 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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