Immigration Considerations of Applying for Unemployment Benefits During the COVID-19 Pandemic

May 28, 2020, Travis Helm, Esq., The Law Office of Travis Helm, LLC

As the COVID-19 pandemic continues to unfold across the United States and around the world, Americans have filed more than 40 million jobless claims in the past 10 weeks.[1] Many immigrants and their families’ question whether they are eligible to apply for unemployment insurance benefits in the event of a layoff or termination. These concerns stem from a new Trump administration policy, often called the “public charge” rule, which makes it more difficult for immigrants to gain lawful permanent resident status if it is determined they may need public assistance in the future. The public charge rule looks to determine whether the intending immigrant is more likely than not at any time in the future to receive one or more public benefits as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate.

Unemployment insurance is a joint state-federal program that provides cash benefits to eligible workers. Each state administers its own program, including its own criteria for eligibility. The basic program in most states provides up to 26 weeks of benefits to unemployed workers, replacing about half their previous wages, up to a maximum benefit amount. In general, individuals usually qualify for regular unemployment insurance benefits if they:

• Are unemployed through no fault of their own

• Meet work and wage requirements

• Meet any additional state requirements

Each state is different in how it handles unemployment insurance and when someone is considered unemployed and eligible to receive unemployment compensation. Details regarding each state’s program can be found at the U.S. Department of Labor’s Unemployment Benefits Finder website.[2]

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.[3] DHS has stated in its final rule on public charge inadmissibility, that it would not consider unemployment benefits under the public charge inadmissibility determination, as there are considered to be earned benefits through the person’s employment and specific tax deductions. Unemployment benefits are not a “public benefit.”[4] Significant though, the U.S. Department of State (DOS) has not confirmed whether unemployment insurance benefits will be considered as part of its public charge totality of the circumstances analysis. Neither does the DOS Interim Final or the Foreign Affairs Manual directly address the issue of how unemployment benefits will impact public charge determinations made by consular officers at U.S. consulate processing overseas.

In summary, many non-citizens are eligible to apply for unemployment benefits from their state unemployment offices. Essentially, anyone having work authorization, or a form of lawful presence can apply for unemployment benefits including the following categories:

• Lawful Permanent Residents (known as LPRs or green card holders)

• People with work authorization

• DACA recipients and others who have been granted deferred action

• Refugees and people granted Asylum

• VAWA recipients

• Agricultural workers

Application for and receipt of unemployment insurance benefits are not considered receipt of public benefits and should not be considered against an immigrant during the public charge determination analysis. It’s insurance, the costs of which are covered by workers and employers, not taxpayers.

If you are concerned how these uncertain times might affect your immigration case, we encourage you to contact our office and schedule a consultation to discuss your situation and understand your options.

This blog is provided as general information and should not be considered as individual legal advice.

[1] https://www.washingtonpost.com/business/2020/05/28/unemployment-claims-coronavirus/ [2] U.S. Department of Labor’s Unemployment Benefits Finder, available at: https://www.careeronestop.org/LocalHelp/UnemploymentBenefits/find-unemployment-benefits.aspx [3] https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds [4] https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10

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