Unemployment and COVID-19

Are you eligible to claim unemployment insurance during COVID-19?

Please see below for some information from AILA on this. Each state is different, so we suggest contact your state unemployment office for guidance. For E-3, L-1 and H-1B visa workers for example, if they have relaxed the requirement of “available for work”:

Each state is different in how it handles unemployment insurance and when someone is considered unemployed and eligible to receive unemployment compensation. Some states, such as Illinois for example, limit unemployment insurance to individuals who are lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law, with some exceptions. Additionally, in order to be eligible for unemployment insurance, some states require the unemployed individual be able to establish that they are able to work, available for work and actively looking for work. In Arizona, for example, individuals filing a claim for unemployment insurance benefits must indicate that they are able to work, available for work, and actively seeking work. The Arizona Department of Economic Security defines someone who is “available for work” as someone who “must be ready and willing to accept full-time work when offered without restrictions.” In California, applicants must be “available for work”, “ready and willing to accept work immediately”, and “actively looking for work.” Thus, depending on the state’s unemployment insurance eligibility requirements, practitioners must evaluate the individual’s underlying immigration status and applicable case law of the relevant state to determine if the individual is considered “available for work” when they are unemployed. 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 under the case law in some states because they’re not considered “able and available to work” when they are unemployed.

Even though H-1B and some other nonimmigrant workers have flexibility to change employers, federal law requires the new employer to file a new visa petition before the employee may work (and for some visa categories, the petition must be approved first). Thus, the analysis goes, if a nonimmigrant worker has lost a job and does not have a new visa petition filed by a new employer, the worker is not “able and available” to work and does not qualify for unemployment insurance benefits. On the other hand, some foreign workers are employed in the United States pursuant to an employment authorization document (EAD), such as certain H-4 spouses of H-1B workers, adjustment of status applicants, DACA recipients, TPS recipients, applicants for asylum, and refugees, among others. These individuals typically have an unrestricted EAD, so generally these individuals would be “available for work” for another employer other than their current employer. The same holds true for lawful permanent residents, as these individuals are authorized to work for any employer; thus, if they were to lose their job, they generally would be “available for work” for another employer. Undocumented workers cannot collect unemployment insurance as they were not work authorized during the designated period in which their wages were earned and they cannot demonstrate that they are “available for work” because they are not legally authorized to work in the United States.