Unemployment Benefits

I am in H-1B status and I was laid off/terminated/reduced hours – Am I eligible for unemployment insurance?

It depends, as unemployment insurance is a joint state-federal program administered by each state through its own eligibility criteria and benefit amounts, but the state must follow federal guidelines. As such, there is not one answer to that question.

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. (see AILA Doc. No. 20041533. (Posted 4/15/20).

H-1B workers are generally only authorized to work in the United States for the employer(s) (some H-1B holders have concurrent H-1B approvals, meaning they can work for multiple employers at the same time) that have filed and received an approval of their H-1B petition on your behalf. Thus, if you have lost your job with your employer(s), you may not qualify under the case law in some states because you would not be not considered “able and available to work”. Even though you have flexibility to change employers within, UP TO 60 days after termination, AND may begin work upon USCIS receipt of your new employer’s petition (i.e. does not have to be approved first), each individual state laws, regulations, and case law may not interpret this as “able and available to work”.

However, if your spouse has an H-4 EAD or an EAD based on a pending adjustment of status application, this typically allows for unrestricted employment, and therefore should be considered “able and available for work” if currently unemployed. If you, the H-1B visa holder, also has an EAD based on a pending adjustment of status application, then you also should be considered “able and available for work” if currently unemployed due to your termination from H-1B employment.

IMPORTANT TO NOTE

There are changes to unemployment insurance benefits pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act, such as Federal Pandemic Unemployment Compensation (PUC) providing an additional $600 per week of unemployment compensation through July 31, 2020, or Pandemic Emergency Unemployment Compensation (PEUC) providing an additional 13 weeks of unemployment compensation, thorough December 31, 2020. However these additional benefits, among others, may be considered restricted to “qualified aliens”, and in general some categories of foreign nationals who have work authorization and are generally eligible for regular unemployment insurance benefits, may not qualify for the CARES Act additional benefits.

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