Immigration Implications of Accepting Financial Assistance in the Wake of COVID-19
Questions and uncertainties abound concerning the immigration implications of the federal government’s COVID-19 relief packages, como:
- As a foreign national in the U.S. on an employment-based visa, will your immigration status be put in jeopardy if you work from home, lose your job, or receive any of the emergency disaster relief recently put forth in the three “phases” of federal coronavirus relief packages1?
- As an E-2 investor or L-1 small business owner/executive, are there any consequences in applying for financial assistance through the Coronavirus Aid, Relief, and Economic Security (CARES) Act?
The short answer to both these questions is no. Arguably, your currently valid immigration status should not be jeopardized by receiving federal emergency disaster relief. The long answer, of course, is more complicated.
A plausible defense to a potential immigration challenge to a foreign national’s immigration status resulting from the receipt of federal disaster aid may be centered around the Department of Homeland Security’s (DHS) newly enacted public charge rule.
The DHS rule defines public charge as “an alien who receives one or more public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” The rule interprets “public charge” as a reason for denying a foreign national’s admission to the U.S.
However, the public charge rule does not apply to the receipt of federal emergency disaster assistance. The public charge rule, published in the Federal Register (Vol. 84, No. 157), clearly states, “Furthermore, the rule’s definition of public benefit does not include emergency aid, emergency medical assistance, or disaster relief.”
Importantly, note the USCIS alert regarding seeking medical treatment for COVID-19 and the public charge rule: “USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.”
Be aware, though, that the federal coronavirus relief packages do not change the existing immigration regulations. An example of where things can become more complicated is in the case of an employee in H-1B status. If an H-1B employee is working from home in a location that is not within commuting distance from the workplace, the employer is advised to obtain a new Labor Certification Application (LCA) for that location and file an H-1B amendment. Más lejos, if an H-1B employee’s job is terminated (whether or not due to coronavirus), under the current immigration regulations, that employee cannot claim unemployment benefits because their ability to work is dependent on their immigration status. The effects and guidance related to COVID-19 for employers of H-1B workers becomes even more complex.
Although the exception for receiving federal disaster assistance is published under the public charge rule for inadmissibility, our experienced attorneys may be able to build an argument that effectively applies the public charge rule’s exception to a broader set of immigration circumstances, including E-2 small businesses owners and L-1 executives already in the U.S. who receive federal disaster assistance.
Because the current situation is evolving rapidly, we urge you to contact one of our attorneys at Gee & Zhang to discuss your specific situation as it relates to applying for or accepting federal disaster relief, or if you are an employer of foreign nationals in work-authorized visa status. While we are safely distancing ourselves and working in staggered shifts, we assure you that Gee & Zhang is here to help you navigate these uncertain times.
For more information:
In addition, the U.S. Chamber of Commerce has published a Coronavirus Emergency Loan Small Business Guide, available at:
For a comprehensive overview of emergency provisions included in the federal government’s relief packages, see the National Review article, “Current Economic Relief Opportunities for US Small Businesses Impacted by the COVID-19 Outbreak in the CARES Act,” available at: