Unemployment Insurance Benefits and Immigration

My office has been getting many questions from our immigration clients regarding whether or not they are eligible to seek unemployment insurance benefits in the event of a layoff, reduction in force or termination.

Please note at that this post is to serve as an overview and is not intended as legal advice. Clients should refer to the unemployment insurance requirements for the relevant state in which they live and consider seeking additional guidance from a labor and employment attorney that practices in the relevant state.

What is Unemployment Insurance?

Unemployment insurance is a joint state-federal program that provides cash benefits to eligible workers. Each state administers its own unemployment insurance program, including its own eligibility criteria and benefit amounts, while following guidelines established by federal law.

Who is eligible for unemployment insurance? Under the baseline requirements established in the Federal Unemployment Tax Act, foreign nationals typically qualify for regular unemployment insurance benefits if they are authorized to work (both at the time they perform qualifying work and when they apply for and receive benefits). States may establish stricter rules.

In general, individuals usually qualify for regular unemployment insurance benefits if they:

• Are unemployed through no fault of their own. In most states, this means an individual must have been separated from their job due to layoff, reduction-in-force, or a lack of available work.
• Meet work and wage requirements. An individual must meet their state’s requirements for wages earned or time worked during an established period of time referred to as a “base period.”
• Meet any additional state requirements. As each state sets its own unemployment insurance benefits eligibility guidelines, it is important to evaluate the state specific eligibility requirements for the state in which the foreign national works.

Am I eligible for unemployment insurance?

It depends. Each state is different in how it handles unemployment insurance and when someone is considered unemployed and eligible to receive unemployment compensation. Thus, depending on the state’s unemployment insurance eligibility requirements, practitioners must evaluate the individual’s underlying immigration status and applicable case law of the relevant state to determine if the individual is considered “available for work” when they are unemployed.

Many nonimmigrants, such as foreign workers holding H-1B or L-1 status are generally only authorized to work in the United States for a single employer. Thus, if they lose their job with that employer, they generally would not qualify under the case law in some states because they’re not considered “able and available to work” when they are unemployed. Even though H-1B and some other nonimmigrant workers have flexibility to change employers, federal law requires the new employer to file a new visa petition before the employee may work (and for some visa categories, the petition must be approved first). Thus, the analysis goes, if a nonimmigrant worker has lost a job and does not have a new visa petition filed by a new employer, the worker is not “able and available” to work and does not qualify for unemployment insurance benefits. On the other hand, some foreign workers are employed in the United States pursuant to an employment authorization document (EAD), such as certain H-4 spouses of H-1B workers, adjustment of status applicants, DACA recipients, TPS recipients, applicants for asylum, and refugees, among others. These individuals typically have an unrestricted EAD, so generally these individuals would be “available for work” for another employer other than their current employer.

The same holds true for lawful permanent residents, as these individuals are authorized to work for any employer; thus, if they were to lose their job, they generally would be “available for work” for another employer.

Undocumented workers cannot collect unemployment insurance as they were not work authorized during the designated period in which their wages were earned and they cannot demonstrate that they are “available for work” because they are not legally authorized to work in the United States.

Are there any changes to unemployment insurance benefits that I should be aware of due to the recent passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act?

• Federal Pandemic Unemployment Compensation (PUC) Under the CARES Act, individuals who are eligible for unemployment insurance or Pandemic Unemployment Assistance will be eligible to receive an additional $600 per week of unemployment compensation through July 31, 2020.
• Pandemic Emergency Unemployment Compensation (PEUC) The CARES Act provides an additional 13 weeks of unemployment compensation, thorough December 31, 2020, for individuals who have exhausted their regular state unemployment insurance benefits. Most states currently offer 26 weeks of regular unemployment benefits, though nine states provide fewer weeks and one state provides more. In order to receive PEUC, workers must be engaged in active work search requirements, taking into account flexibility for individuals unable to search for work because of COVID-19, including because of illness, quarantine, or movement restrictions.

Pandemic Unemployment Assistance (PUA) Program

The CARES Act creates a temporary Pandemic Unemployment Assistance (PUA) program through December 31, 2020, to provide payment to individuals not traditionally eligible for unemployment benefits. This includes business owners, self-employed individuals, independent contractors, gig workers and those with a limited work history and history of wages earned. The individual must self certify that he or she is otherwise able to work and available for work within the meaning of applicable state law except that the individual is unemployed, partially unemployed, or unable or unavailable to work for one of the following reasons:

• He or she has been diagnosed with COVID-19 or has symptoms of it and is in the process of seeking a medical diagnosis;
• A household member has been diagnosed with COVID-19;
• He or she is providing care to a household member with COVID-19;
• A child or other household member for which the individual is the primary caregiver is unable to attend school or daycare due to COVID-19;
• The individual is unable to reach work due to quarantine;
• The individual is unable to attend work because a healthcare professional advised him or her to self-quarantine;
• The individual is scheduled to start employment and does not have a job or cannot reach their place of employment as a result of COVID-19;
• They have become the breadwinner for a household because the head of the household has died as a direct result of COVID-19;
• They had to quit their job as a direct result of COVID-19; • Their place of employment is closed as a direct result of COVID-19; and
• the individual is self-employed; is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for unemployment benefits under another state unemployment program.

Are Unemployment Insurance Benefits Taken into Consideration for Purposes of Public Charge Determinations?

Unemployment insurance payments are not generally taken into consideration by the U.S. Department of Homeland Security (DHS) for purposes of making a public charge determination. As DHS explained in its final rule on inadmissibility on public charge grounds, consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post-secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.” In addition, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that unemployment benefits are not considered by USCIS in a public charge inadmissibility determination as unemployment insurance is considered by USCIS as an “earned” benefit. For a non-exhaustive list of other public benefits that USCIS does not consider in the public charge inadmissibility determination, please see Volume 8, Part G, Chapter 10 of the USCIS Policy Manual.

The U.S. Department of State (DOS) has not publicly confirmed whether unemployment insurance benefits will be considered as part of its public charge totality of the circumstances analysis. Moreover, the DOS Interim Final Rule and the Foreign Affairs Manual do not directly address the issue of how unemployment benefits will impact public charge determinations made by consular officers at U.S. consulates overseas.

To discuss any additional questions please contact Immigration Attorney Svetlana Prizant, Esq., at 718-407-0871