Unemployment Benefits and Impact on U.S. Immigration
Posted Feb 20, 2009
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Widespread layoffs and increasing unemployment have led to questions about unemployment benefits in the U.S. and the impact of these on one's immigration status. Immigrants often have a strong sense of hard work and self-reliance, and a reluctance to ask for anything that may appear to be a government handout. Many are from countries where unemployment benefits are an unheard of luxury, so there is no such expectation. For the benefit of MurthyDotCom and MurthyBulletin readers, we address concerns about eligibility for such benefits, as well as whether receiving such benefits might create problems with one's immigration status in the United States. 
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Unemployment Benefits : What are They?
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Unemployment benefits, essentially, are an insurance benefit for certain workers who are unemployed through no fault of their own. These programs are run by each respective state; each establishing its own requirements, based on federal guidelines. With limited exception, the money for these benefits comes from required payments made by employers. Benefits generally require employment for a minimum amount of time and/or a set earnings level. They also require that the employment has been lost through no fault of the worker. Thus, a worker who is fired for cause or who voluntarily leaves a job generally is ineligible. More information is available on the U.S. Department of Labor (DOL) WebSite. The appropriate state offices and contact information is also available.
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Overview of Immigration Status and Employment Eligibility
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The state laws related to immigration status and unemployment benefits must comply with federal requirements. Information (PDF 37KB) on these requirements is available through the DOL. As explained by the DOL, it is necessary that the foreign national had permission to work during the time of his/her employment, and that s/he is able and available for employment at the time the request for benefits is filed.
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For many MurthyDotCom and MurthyBulletin readers, it is the last part of this requirement that is at issue. Specific state requirements should be checked in each situation. For U.S. permanent residents (commonly referred to as "green card" holders) and others who can work without employer sponsorship, this requirement should not present a problem. For those in categories in which employer sponsorship is necessary to authorize employment (H1Bs, for example), the state authorizing benefits is likely to view this as a hindrance to the applicant's availability for immediate employment. Additionally, these individuals generally would be out of status after a job loss, absent a change in status or other legal basis for remaining in the United States.
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Public Charge Provisions and Immigration Status
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There are situations in which financial difficulties can impact immigration status. The relevant provisions in immigration law concern public charge issues. As readers of MurthyDotCom and the MurthyBulletin are aware from our January 30, 2009 article, 2009 Poverty Guidelines Released, the USCIS may deny applications for permanent residency if they determine that the applicant is likely to become a public charge.
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H1B/H-4 and Other NIVs Can Be Denied Admission for Public Charge Reasons
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Sometimes dependent family members applying for the H-4 or the F-2 are denied the visa on the grounds that the principal in H1B or F-1 status is not earning sufficiently to support him/herself and the family. Individuals determined by the U.S. Citizenship and Immigration Services (USCIS) to likely become public charges are inadmissible to the United States and, thus, also are not eligible to enter or adjust status to permanent residence.
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Removal for Public Charge Reasons
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Persons may be removed (deported) if they have become public charges within five years of entry to the United States. However, this can only occur if the cause of their financial condition existed before their entry to the U.S. The USCIS is not to view the use of public programs, including federal means-tested public benefits, as the single ground for the public charge determination. Case law requires that, in order to be removed under the public charge provisions, a foreign national must receive state or other government benefits for which there is a fee. The government must seek repayment from the foreign national and/or the sponsor, and there must be a failure to pay the government.
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Unemployment Recipients Not Public Charges, Per Se
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Unemployment benefits generally should not give rise to problems under the public charge removability provisions. As explained above, unemployment benefits are an insurance benefit, with the costs borne by employers. Employers are required to pay into their state programs. Thus, these benefits are not means-tested public benefits provided by the government, based on financial need. There is no financial assessment for eligibility; it is simply based upon meeting the state requirements for holding and losing employment through no fault of one's own. Under the removability provisions, as stated above, in order to be determined to be a public charge, there must be a government charge for a service, a demand for payment, and a failure to pay. Unemployment benefits do not fit into this model as there is no requirement for repayment.
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For adjustment of status, the fact that one was eligible for unemployment does not necessarily lead to the likely conclusion that s/he will need public benefits in the future. Periods of unemployment do raise issues for the primary beneficiary in an employment-based permanent residence case, as this is based upon a future job offer. However, it is entirely possible that a person with an Employment Authorization Document (EAD) could be eligible for unemployment benefits at some point during case processing, but also eligible for approval of the adjustment of status to permanent residence, based upon an alternative job offer under the AC21 portability provisions. This is not an ideal situation, however, and should be discussed with an immigration attorney.
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Spouse on EAD Safer to Enjoy Unemployment Benefits
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A somewhat better situation would involve, for example, an individual with an EAD as a derivative spouse. This individual might become eligible for unemployment benefits, and would not be a public charge risk if the primary spouse was earning sufficient income to assuage any governmental concerns.
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Current Economy and Likelihood of Public Charge
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Given the current high rate of unemployment in the United States, it is possible that the USCIS could start examining the public charge admissibility requirements more closely. Arguably, the fact that one worked for a period sufficient to make him/her eligible for unemployment benefits actually makes it less likely that s/he will become a public charge. These benefits are granted based upon holding employment for a sufficient amount of time, and are designed to help individuals sustain themselves until they locate new employment.
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In case this becomes a larger issue, individuals should be prepared to show sufficient personal or household earnings histories to prove that they are not likely to become public charges. It could also be helpful to show other financial resources that could be accessed, if needed. Public charge admissibility considerations are supposed to be big-picture considerations as to whether, overall, it is likely that a person is going to need help from the government. Financially, as well as from an immigration point of view, it may be better to take the unemployment funds and preserve one's savings. This way, if any questions arise, it can be argued that there are sufficient savings to avoid public charge concerns in the future.
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Taking Unemployment Benefits - Not a Problem for Citizenship
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There are often concerns regarding whether acceptance of unemployment benefits will create problems in one's naturalization (citizenship) case. The required forms carry no questions on this matter. The financial concerns that can create problems in naturalization cases are nonsupport of dependants and nonpayment of taxes. Neither of these issues is related to acceptance of unemployment benefits.
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It is necessary to provide tax returns in connection with the naturalization interview. These will reflect any unemployment benefit payments. This normally should not create a problem. If a job was lost shortly after receiving an employment-based green card, questions could be raised. It is the termination of the job through which one obtained the green card that may be an issue, however; not the receipt of unemployment benefits.
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Other Issues : Taxes and Benefit Levels
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Recipients of unemployment benefits need to be aware that this money generally is taxable as income. It is also important to know that the benefits amount is only a fraction of one's lost income, both in terms of salary and duration. For many, the benefits are far below their regular earnings levels. For example, in Maryland the current maximum payment is $380 per week, which is often far below the salaries most professionals on H1B would take home.
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Conclusion
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No one wants to be in the position of having to request unemployment benefits. Immigration concerns should not stand in the way of accepting these benefits for most eligible individuals, however. Foreign nationals in nonimmigrant statuses generally are not eligible, since unemployment means that such individuals would be failing to maintain valid nonimmigrant status. Those in other legal, work-authorized statuses may qualify for these benefits. Questions regarding any potential impact on immigration status, when applying for unemployment benefits, should be discussed with a qualified, experienced immigration attorney.