Unemployment Benefits and Foreign Nationals – Part One: Am I Eligible?

By Samantha Davis, Richmond Immigration Lawyer

We understand the uncertainty and stress many are facing with increased immigration changes and job instability, especially during the pandemic. We have written a series of blog posts to provide some clarity regarding unemployment insurance during this uncertain time. This blog series will cover the following topics: (1) Eligibility for Unemployment Insurance; (2) the CARES Act; and (3) Consequences of Receiving 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 the federal guidelines. As a consequence of COVID-19, applications for unemployment benefits have significantly increased due to layoffs and temporary business closures.

Figuring out if you qualify for unemployment insurance can be difficult enough but it becomes more complicated if you are a foreign national. Whether you qualify for unemployment insurance and how to apply is state-specific so it is important to check state-specific guidelines. Depending on the complexity of your questions it may be worth consulting with a labor and employment attorney in your state.

Who is Eligible?

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

  • Are unemployed through no fault of their own
    • Most states define this as losing a job due to layoffs, reduction-in-force, or lack of available work.
  • Meet work and wage requirements
    • Each state has a different “base period”.
  • Meet any additional state requirements

As a Foreign Worker, Am I Eligible?

Additional state requirements could preclude certain foreign workers from qualifying for unemployment benefits so the answer to this is it depends. Some states limit receipt of benefits to certain types of foreign workers and some states have additional requirements that indirectly impact foreign workers on certain types of visas. Undocumented workers are unable to collect unemployment benefits, regardless of state, because they would not meet the second or third requirements.

Some states, like Illinois, require claimants to be lawful permanent residents in order to receive benefits. So, if you are working on a non-immigrant visa, such as H-1B, L, O, etc. you will not qualify for benefits in those states.

Another requirement in many states, including Virginia, is the worker must be “able” and “available” to work or “ready and willing to accept work immediately”. Many nonimmigrants, such as foreign workers on H-1B and L-1 status, are generally only able to work for a single employer without the filing or approval of a new petition so they would not be considered “available for work” when they are unemployed. However, with the CARES Act (see blog post 2), states may eliminate this requirement at least during the current pandemic. It is critical therefore that you check with your state employment agency to confirm the requirements.

Conversely, foreign workers who hold unrestricted employment authorization documents (EADs), such as nonimmigrants who hold H-4 status, adjustment of status applicants, DACA recipients, TPS recipients, refugees and asylees may still be eligible under the “able” and “available” requirement.

In light of the restrictions surrounding employment options during stay-at-home orders, some states have temporarily suspended the “actively seeking work” requirement.

Additionally, due to the unique situation employers and employees are facing due to restrictions related to the Coronavirus, the government has added some additional unemployment programs. For details on those new programs, please read part two of this series regarding the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

We are here to help you navigate the immigration maze with peace of mind and confidence. Contact Sumner Immigration Law to set a consultation to create your strategy today! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.