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Are Non-Immigrants Eligible for Unemployment Benefits?

Many employees have growing concerns about their job security as COVID-19 continues to take a toll on both large and small companies. The question for many is whether or not they are eligible for unemployment benefits should the unexpected happen.

Work-authorized visa holders do pay into their company’s unemployment insurance, but unfortunately, not all are eligible to use those benefits. To be eligible for unemployment, you must have an unrestricted right to work in the United States—which means there are no conditions on whom you can work for or where you can work.

Employees who are authorized to work based on their H-1B, L-1, TN, E, etc. visas are restricted to the specific employer sponsoring them. They are not allowed to work for another employer or move locations outside the MSA, unless the appropriate steps are taken by the sponsoring employer to file an LCA and/or Form I-129 with USCIS. Any new terms and conditions of employment must be approved by USCIS before an employee can begin working. Therefore, those on H-1B, L-1, TN, E, etc. visas cannot file for unemployment benefits.

In contrast, dependent visa holders who have a valid Employment Authorized Document (EAD) card have an unrestricted right to work in the U.S. For example, H-4 and L-2 EAD holders are able to take any job available in the U.S. without restrictions, and this flexibility in employment makes them eligible for unemployment benefits assuming the following: 1) H-4/L-2 EAD holder loses their job, 2) their spouse continues to work to maintain H-1B/L-1 status, and 3) their EAD is still valid. The H-4/L-2 EAD holder can request unemployment benefits, but only until the expiration date of their valid EAD card.

Given that USCIS’ public charge rule went into effect on February 24, 2020, the follow-up question is whether or not applying for unemployment is considered a public benefit. It does not. In their policy manual, USCIS clearly states that it does not consider unemployment benefits in the public charge inadmissibility determination.[1]

As a reminder, all U.S. regulations regarding nonimmigrant and immigrant visas remain enforced, so it is important to maintain status and compliance to all regulations as the COVID-19 pandemic continues. If you have any questions regarding your status, please contact one of our qualified attorneys.