Unfortunately, most NIV workers who have lost their jobs will find it a legal impossibility to qualify for Unemployment benefits. In order to access unemployment benefits, the laid off employee must certify that they are available to work and ready and willing to accept work immediately.
Under Federal law, in order for a foreign worker to access unemployment benefits, he or she must certify they are available to work, and ready and willing to accept employment immediately. This does not, however, imply just any work. Rather work that matches their occupational skills and/or educational background.
“Available for work” is defined under 20 CFR § 604.5 as:
(f) Alien status. To be considered available for work in the United States for a week, the alien must be legally authorized to work that week in the United States by the appropriate agency of the United States government. In determining whether an alien is legally authorized to work in the United States, the State must follow the requirements of section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)), which relate to verification of and determination of an alien’s status.
Without a job, the employee is no longer maintaining lawful immigrant status. And being able to work would require finding another employer willing to petition them as most nonimmigrant work visas are employer specific, including the H1B.
For Californians, the EDD confirms a similar restriction: https://www.edd.ca.gov/Unemployment/FAQ_-_Eligibility.htm
“To collect UI benefits, you must show that you were in satisfactory immigration status and authorized to work in the United States when earning the wages you used to establish your claim.
You must also give proof that you are currently in satisfactory immigration status, and are authorized to work each week that you claim benefits.
Note: The EDD verifies immigration status and work authorization through the Department of Homeland Security.”
Nonimmigrant workers whose employment must first be authorized (H-1B, H-1B1, E-1/E-2, E-3, L-1, O-1, TN) may therefore be ineligible. On the other hand, dependent spouses who have work authorization (H-4 and L-2 EAD) should be eligible to apply while they are in status.
For more information and potential options, schedule a consult today. We are here to help.