*Practice limited to federal immigration law. Licensed in NY, MA, but not in CA.

Do Unemployment Benefits Hurt Your Chances as a Visa Petitioner for Your Family?

 

Today, I’m going to talk about unemployment benefits. Right now, the economy is not doing well. Hopefully you’re gainfully employed. But if you’re not or if you lose your job, can you take unemployment benefits? And if you did so, would that affect your immigration case?

I’ve gotten this question three times. And two of them are from clients of mine. The third time it was from someone else who hasn’t hired me yet. It’s a good question. I want to answer it. And that’s what I’m going to do here today.

 

The question

Here’s the question: “I’m thinking about applying for unemployment because of COVID and I want to know if it’s okay to do so. Will it affect my case for my wife’s visa? Also, will it affect my case when I apply for citizenship?”

 

It’s a two-part question

This is a two-part question. One is: how would it affect his wife’s visa? Secondly, how would it affect his application for naturalization? So this particular person has two cases. He has applied for his wife, who is in his home country. And he also has applied for naturalization.

He says, “Maybe, because of the pandemic, they’re not going to care if I apply. But I’m not so sure.” Today, I’m going to answer the first part of the question, which is: how would unemployment benefits affect a petition for his wife’s visa? This is kind of like Star Wars and the Empire Strikes Back. It’s a two-part question.

In a second post, I’m going to answer the second part of the question about how unemployment benefits would impact an application for naturalization, an N-400. But those are two different posts.

 

How I can help

In case you don’t know me, my name is Josh Goldstein. I’m an immigration lawyer here in Los Angeles, California. I help people across the country and around the world with US immigration matters. I help people get work permits, green cards, and citizenships.

And I’m especially known for helping people with delayed immigration cases. I file writ of mandamus lawsuits to challenge any kind of delayed immigration case, especially delayed visas, delayed citizenships, and delayed green cards.

I originally created this post as a video for social media and also for my YouTube channel. For the latest updates and for my answers to all sorts of questions like this, please subscribe to my YouTube channel. And please  share it with your friends if you find it helpful. Also, check out the other posts on my blog.

 

Back to the question

Now to answer the question… This particular person has applied for his wife. He’s in the United States. His wife is in his home country. As a green card holder, he filed a petition for his wife. The first problem he has doesn’t appear in this question.

 

The first problem

Donald Trump has issued a presidential proclamation that bars the issuance of visas for those who are just green card holders. So if you have a green card and you’re petitioning for your husband or wife, that visa cannot be issued pursuant to this presidential proclamation. However, it is temporary. It extends until the end of the year, December 31st, 2020. But it could also be extended.

This presidential proclamation is subject to litigation and could be struck down by a court. It could be changed by Trump. It could not be extended. Trump might not be the president in January. So there are a lot of unknowns.

 

What you should do about the proclamation

If you have a green card and you’re married and your spouse is in your home country, by all means, file the petition anyway. Don’t let Trump’s proclamation stop you from doing that because you don’t want to just wait to see what’s going to happen. You want to get going now on this.

 

Unemployment benefits

But to answer the question at hand… How would accepting unemployment benefits mess up the visa petition? It’s not the fact that this petitioner accepts unemployment benefits. There’s absolutely nothing wrong with accepting unemployment benefits. Unemployment benefits are not welfare. They are not government assistance.

This is a private, state-regulated insurance program that’s set up for people who lose their jobs and become unemployed. So you’re well within your legal rights as a permanent resident to accept unemployment benefits.

 

The public charge determination

However, it will impact a case, like this one, when it comes to the public charge determination. The public charge determination is a discretionary decision based on the totality of the circumstances.

The new public charge rules came out in February of 2020. Before they came out, the public charge determination was based entirely and exclusively on the affidavit of support. The affidavit of support is based on whether you have an income that’s equal to at least 125% of the poverty limit for your household size.

And if you lose your job and you’re unemployed, then you don’t have an income. So you would not be able to meet the affidavit of support requirements. Maybe you could file the affidavit based on assets. That’s possible. But it gets complicated.

 

What you could do instead

What I’d usually do in these situations is to encourage people, who file petitions and who lose their jobs, to find a new person to step in and file an affidavit of support to help out as a joint sponsor. But if you, as a petitioner, lose your job, the affidavit of support is only one factor. It is a significant negative factor to be unemployed.

So it’s not accepting unemployment benefits, per se, that’s going to damage your chances. It’s not like the consulate is going to look at it and say, “Well, wait a minute. We’d like to approve your petition. But you, the petitioner, took unemployment benefits.” It’s not the unemployment benefits, per se, that are going to cause you problems. It’s the fact that you’re unemployed.

 

What you should do

And if you’re unemployed, that would be a significant negative factor in the totality of circumstances analysis. Hopefully, someone who loses their job can find another job. I realize it’s tough right now. Still, someone in this situation should start looking for a new job right away. Also, look at whether you can meet the affidavit of support requirements through assets.

Finally, see if you can line up an affidavit of support from a joint sponsor, from someone else who is a permanent resident, a US citizen or a US citizen who lives in the United States, who is employed and has sufficient income or assets. And let’s put in a new affidavit of support from the new person if necessary. That’s my answer to part one of this question.

 

About the other question

In my follow-up video and post, I’m going to answer the question about whether accepting unemployment benefits would negatively impact an application for naturalization. I hope you will find that helpful as well.

If you have any other questions, reach out to me. Let me know. I’d be happy to help you. Don’t get discouraged right now. There’s a lot of negative information out there. I want you to stay positive. Be determined to achieve your immigration goals.

 

Josh Goldstein
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