As Employers and their related H-1B nonimmigrant workers are facing challenges directly as a result of the pandemic, we have received concerns from both employers and H-1B employees in regard to the continuation of employment. First employers may see certain client contracts on hold and revenue lessened or halted as businesses slow down during this time of “shelter in place” or other city shutdowns.

States such as NY and NJ have similar policies as other major metropolitan cities in the US. We have also seen that the national unemployment rate has risen to over 10 million US workers as of April 9, 2020.In such uncertain times, some H-1B employees must file H-1B amendment petitions to lessen their work hours while others may simply be given a notice of termination by employers.

H-1B employees have a sixty-day grace period (Assuming your I-94 is still valid and eligible for a 60-day grace period or until the end of your I-94 period, whichever comes first) after the termination of an H-1B approval with a particular employer and must either file an H-1B transfer with a new employer, change status, or plan to leave the US (an impossible option due to the pandemic currently).

Further, when struck with a position where employment is terminated, the next step is to determine whether H-1B employees can seek unemployment benefits and not trigger the loss of obtaining future permanent residence benefits due to the recent law related to the government public charge inadmissibility determination.On February 24, 2020, the USCIS rule was implemented, which is a public benefits test as to whether foreign workers/applicants can use certain types of government benefits and not be prohibited from ultimately obtaining a permanent resident card.

The USCIS policy manual as outlined below identifies which government benefits foreign nationals can use in the United States and not affect their ability to obtain permanent residence. This list is obtained from the USCIS Policy Manual as listed in Chapter 10 – Public Benefits.

Public Benefits Not Considered

1. Unenumerated Public Benefits

The following is a non-exhaustive list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits:

• Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI)

• Social Security

• Veteran’s benefits including but not limited to HUD-VASH, and medical treatment through the Veteran’s Health Administration

• Government (including federal and state) pension benefits and healthcare

• Unemployment benefits

• Worker’s compensation

• Medicare

• Federal and state disability insurance

Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to:

• Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)

• Benefits under the Emergency Food Assistance Act (TEFAP)

• Child and Adult Care Food Program (CACFP)

• Food Distribution Program on Indian Reservations (FDPIR)

• Short-term, non-cash, in-kind emergency disaster relief

• Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations

• Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease

• Attending public school

• Benefits through school lunch or other supplemental nutrition programs including

• Benefits through the Child Nutrition Act

• Benefits from the National School Lunch Act

• Summer Food Service program;

• Child care related services including the Child Care and Development Block Grant Program (CCDBGP)

• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)

• Children’s Health Insurance Program (CHIP) and State Children’s Health Insurance Program (SCHIP);[27]

• Health Insurance through the Affordable Care Act

• Tax Credits

• Transportation vouchers or other non-cash transportation services

• Housing assistance under the McKinney-Vento Homeless Assistance Act

• Energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP)

• Educational benefits, including, but not limited to, benefits under the Head Start Act

• Student loans and home mortgage loan programs

• Foster care and adoption benefits.

As there are multiple federal and state public benefits programs, USCIS is unable to list all programs not included within the public charge inadmissibility determination.

2. Medicaid Exclusion

USCIS does not consider the following Medicaid benefits for purposes of the public charge inadmissibility determination:

• Benefits paid for an emergency medical condition

• Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA)

• School-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under State law

• Benefits received by an applicant under the age of 21

• Benefits received by a pregnant applicant, including the period during the pregnancy and 60 days after the end of the pregnancy.

Related Blogs: https://emandilaw.com/uscis-reopens/

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