Unemployment Insurance For Immigrants and Non-Citizens: UPDATED

As an immigrant, can I apply for an Unemployment Insurance Benefits in the event of a layoff, reduction in force (RFI), or termination?

It depends. Each state determines a different rule in how it handles unemployment insurance and if someone is considered unemployed or eligible to receive unemployment compensation. In general, first you must be unemployed “through no fault of their own.” Second, you must have enough wages earned or hours worked in their “base period” to establish a claim. Third, you must be “able and available” to work and actively looking for work. Depending on the state and the applicable case law, some immigration status are not considered “available for work” even when they are unemployed. Here are some examples:

Illinois: Limit unemployment insurance to applicants who are lawfully admitted for permanent residence or otherwise permanently residing in the United States, with some exceptions.

Arizona: The applicants filing a claim for unemployment insurance benefits must indicate that they can work, available for work, and actively seeking work. The Arizona Department of Economic Security defines someone who is “available for work” as someone who "must be ready and willing to accept full-time work when offered without restrictions."

California: The applicants must be “available for work”, “ready and willing to accept work immediately”, and “actively looking for work.”

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. The basic program in most states provides up to 26 weeks of benefits to unemployed workers, replacing about half of their previous wages, up to a maximum benefit amount.

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 when they perform qualifying work and when they apply for and receive benefits).

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 be without work due to layoff, reduction-in-force, or a lack of available work.

• Meet work and wage requirements: Check your state requirements for wages earned or time worked during a base period.

• Meet any additional state requirements: As each state sets it a different guideline, it is crucial to evaluate the specific eligibility requirements.

An undocumented work is eligible for unemployment insurance?

Under the current state and federal systems, undocumented workers are not eligible for unemployment benefits, 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.

It is important to remember workers must have valid work authorization during the base period, at the time they apply for benefits, and throughout the period they are receiving benefits.

Are there any unemployment insurance benefits due to the Coronavirus Aid, Relief, and Economic Security (CARES) Act?

Yes. Among other things, the CARES Act establishes federal funding for three major unemployment insurance programs (Pandemic Unemployment Assistance), additional weeks of benefits, and additional $600 in federal weekly compensation.

• Federal Pandemic Unemployment Compensation (PUC): Under the CARES Act, individuals who are eligible for unemployment insurance or PUC 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. 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): PUA will provide, through December 31, 2020, 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 iindividual 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.

Are Unemployment Insurance Benefits considered a Public Charge?

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, “DHS would not 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.” Therefore, USCIS considers unemployment insurance as an “earned” benefit.

If you need any immigration legal assistance or for more information, please contact our office, as we are happy to provide free initial consultations.

About Us

The Law Office of Nicholas J. Mireles is an experienced Los Angeles based U.S. Immigration law firm that has been practicing immigration law since 2013. Our background makes us uniquely well suited to help you with any issue relating to your immigration status.

Law Office of Nicholas J. Mireles, APC

411 West 7th St. Ste 310 - Los Angeles, CA 90014

attorney@loonjm.com