April 13, 2020

COVID-19 Impact on Immigration: Non-Citizen Eligibility for Unemployment Benefits under the CARES Act

Under the basic requirements established in the Federal Unemployment Tax Act (FUTA), non-citizens usually qualify for regular unemployment insurance benefits (UI) if they are authorized to work. The federal funded unemployment insurance benefits under the Coronavirus Aid Relief and Economic Security (CARES) Act establish federal funding for three major UI programs (pandemic unemployment assistances, additional weeks of benefits, and additional $600 in federal weekly compensation).

These CARES Act federal benefits could be limited to “qualified aliens” which only covers certain groups defined in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Under this PRWORA, only lawful permanent residents (LPR), asylees, and refugees would qualify for federally funded benefits. If this restriction is applied to CARES UI benefits, other work-authorized non-citizens such as DACA recipients, TPS holders, and others might be ineligible. At this juncture, the U.S. Department of Labor has not provided any official guidance on this issue so it is unknown whether the PRWORA will be applied to CARES UI benefits.

Nonimmigrant workers, such as H-1B and L-1 visa workers, might be excluded from regular UI benefits under FUTA in some states because they’re not considered “able and available to work” when they are unemployed. Employer-sponsored visas typically authorize employment with only a single employer. A change of employer usually requires a new employer file a new visa petition before the employee can work. Therefore, if a nonimmigrant worker loses her job and does not have a new visa petition filed by a new employer, she is not able and available to work, making her ineligible for UI benefits.

State unemployment insurance rules vary and can include unemployment benefits for reduced hours or temporary furloughs. All non-citizen workers should check state UI benefits for eligibility as UI benefits as each state might have different requirements.

In general, receipt of unemployment benefits will not be considered a disqualifying public benefit under the Department of Homeland Security public charge rule.

This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call me at 214-494-8033, complete my contact form.