If you are an immigrant who has lost your job in the US or been laid off, can you (or should you) seek state unemployment benefits? As is the typical case with legal questions, the answer is not simple — it is rather complex and nuanced.

The “Perfect Storm” for Immigrants: Pandemic, Recession and the Tightening of Immigration Restrictions

The coronavirus crisis is not just a pandemic — it is an economic crisis as well. Millions of people have been thrown out of work, including noncitizens and people whose presence in the US is based on a temporary visa, such as the H-1B. In addition to immigration problems that US citizens do not face, you and your family may share in the economic distress that is affecting the entire country.

The “Public Charge” Barrier

The timing couldn’t have been worse, or so it seems. The twin crises of the coronavirus pandemic and recession began just after the Trump administration announced stringent new rules on determining who is and is not a “public charge” (someone who is likely to rely on public benefits for financial support). the consequence of being designated a public charge would likely be a denial of your application.

Fortunately, although losing your job might cause you “public charge” problems (if it causes you to lose health insurance, for example) you cannot be designated a public charge simply for applying for or receiving unemployment benefits.

How Unemployment Insurance Works

Unemployment benefits”, as they are commonly known, are essentially payouts under a state unemployment insurance program, designed to partially replace the wages you were making before you lost your job, in most cases for a period of up to 26 weeks.

Since individual states administer unemployment insurance, the rules vary somewhat from state to state. In Ohio, the limit is 26 weeks, and you receive 50 percent of your employment wages up to a maximum of $480 per week (possibly more if you have children dependents).

How to Qualify for Benefits

Although state rules differ slightly, under Ohio law, to qualify for unemployment benefits:

  • You must have worked at least 20 weeks during your one-year “base period.”;
  • You must have earned an average of at least $269 per week (as of 2020);
  • You must be unemployed through no fault of your own (you cannot have quit your job without good reason, and you cannot have been fired for good cause);
  • You must be able to work;
  • You must be available for work; and
  • You must be actively looking for work.

Coronavirus-related Expansion of Unemployment Benefits (The CARES Act)

Under the CARES Act, eligible unemployed persons can receive:

  • Up to an additional $600 per week in unemployment benefits until July 31, 2020;
  • Up to an additional 13 weeks of unemployment benefits (this means a total of 39 weeks in Ohio and most other states); and
  • Certain unemployment benefits if you are self-employed or are a “gig” worker.

Remember, all of these benefits are added to whatever your state’s unemployment insurance program provides.

Permanent Resident Card

Lawful Permanent Residents

Lawful permanent residents are eligible for unemployment benefits under the same terms as US citizens are.

Immigrants Holding an EAD (Employment Authorization Document)

If you hold an unrestricted EAD Employment Authorization Document) that doesn’t restrict you to a particular job (spouses of H-1B workers, DACA recipients, and certain other immigration categories), you are likely to be eligible for unemployment benefits under the same terms as US citizens are.

The Bad News: Immigrants on H-1B and Other Employment-Based Visas

If your presence in the US is based on a nonimmigrant employment immigration status such as H-1B or L-1 status, you cannot change jobs without a new visa petition being filed on your behalf by your new employer.

Because of this restriction, you might not be considered “able” or “available” for work, and therefore you might be found ineligible for unemployment benefits unless you have already found a new employer and a new immigration visa on your behalf is currently pending adjudication by the USCIS.

More Bad News: Undocumented Workers

Unfortunately, undocumented workers are not eligible for unemployment benefits — they are not considered “available” since it is illegal for them to work in the United States. The only possible exception might be if you were working legally during your base period (see above) but have since been accruing unlawful presence, meaning that your presence in the US did not become illegal until after the end of your base period

If you are in any of these situations, however, speak with an experienced immigration attorney before you file an application for unemployment benefits.

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