Do You Qualify for Unemployment Insurance Benefits?

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We live in very uncertain times. 2020 has presented an unchartered territory for both everyday living and legal developments. One of such changes has been massive unemployment in the U.S. workforce. Hopefully, this situation is temporary, but in the meantime, it is necessary to discuss the repercussions of applying for unemployment insurance benefits for foreign nationals residing in the United States.

Typically, if you become unemployed because of a layoff or termination, you can seek unemployment insurance benefits in your state of residence. The Federal Unemployment Tax Act governs unemployment insurance benefit rules for foreign nationals and states that foreign workers are eligible for such benefits, if they are authorized to work, both at the time when they were employed and at the time of the application and receipt of the benefits.

What does it mean practically? Generally, you have to satisfy three requirements for qualify for unemployment insurance benefits in California: your past earnings must meet certain minimum threshold; you must be unemployed through no fault of your own, and you must be able, available, and actively seeking work. The most important part for a foreign national is the third one: are you able and available to work?

It’s necessary to determine whether an individual is available to work under the terms of their immigration status. 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 because they’re not considered “able and available to work” when they become unemployed. If an H-1B employee wants to change employers, the employer has to file a completely new petition, which has to be approved before the employee can start working.  Thus, if such a worker has lost a job and does not have a new visa petition approved, the worker is not “able and available” to work and does not qualify for unemployment insurance benefits.

Not all foreign workers are tied to their employer, though. Some individuals, including certain H-4 spouses of H-1B workers, adjustment of status applicants, DACA recipients, TPS recipients, applicants for asylum, and refugees have unrestricted employment authorization documents and can work for any employer they want. Since they can change their employer at will, they are considered “available” to work and can apply for unemployment insurance benefits. Same rule applies to permanent residents who are free to choose their place of work and are not bound by any restrictions.

Undocumented workers cannot apply for unemployment insurance benefits because they are not legally authorized to be employed under the federal law and cannot show that they are “available” to work.

For more information of the eligibility requirements for unemployment insurance benefits, please visit the California Employment Development Department website to see if you qualify.

Finally, unemployment insurance payments are not generally taken into consideration by the U.S. Department of Homeland Security for purposes of making a public charge determination. So, if you are an applicant for immigration benefits, you can apply and receive unemployment insurance benefits without a fear that it will jeopardize your immigration application.