Can Temporary (Nonimmigrant) Workers Qualify for Unemployment Benefits?

There are many reasons why foreign workers in the United States might find themselves out of work. Perhaps your company underwent issues that caused layoffs, or your position was eliminated. After being laid off, the first question on your mind is likely "Can I qualify for unemployment benefits?" You were, after all, probably paying into the state unemployment insurance fund through your paycheck.

What Unemployment Benefits Offer

Unemployment benefits normally offer temporary (26 weeks' worth of) financial assistance in the form of regular cash payments, in an amount that's a percentage of your earnings while employed. That percentage is usually 50%.

Such assistance can provide valuable help for you and your family during your time of professional transition. However, it won't necessarily allow you to relax and wait around. The main problem is that the job loss could put your visa status at risk. Also, undocumented workers are not eligible for unemployment benefits in any state.

Here, we'll give some information to help guide foreign workers who've been legally employed in the U.S. during this transitional time.

Look Into Your State's Unemployment Benefits Eligibility Rules

Each state dictates who can qualify for its unemployment benefits. See Collecting Unemployment Benefits for a breakdown of state laws.

In most states, benefits are available to people who've been employment a set amount of time (a "base period") but lost employment through no fault of their own. Benefits are usually not available in situations where employees quit the job or was fired for cause, for instance because they did sub-standard work or kept showing up late.

Most states also, however, require that the person seeking benefits be not only actively looking for, but immediately available for reemployment.

As a practical matter for foreign workers, that means in most cases that only people who are able to work for any employer without sponsorship would be eligible. In other words, you can probably collect unemployment benefits only if you:

1. have work authorization (an employment authorization document or EAD card) at the time you apply for the benefits
2. held valid work authorization during the time of your employment, the "base period," and
3. continue to have valid work authorization throughout the time you collect benefits.

This leaves many situations in which the loss of a job or even the expiration of a worker's authorization could ruin eligibility. In such circumstances, it's best to contact an attorney for help.

And in a few states, such as Illinois, benefits are not allowed for nonimmigrants. Applicants must have U.S. lawful permanent residence or citizenship.

One bit of good news: In considering your future U.S. immigration prospects, you'll be happy to know that collecting unemployment will not make you inadmissible as a "public charge". See Who May Be Found Inadmissible and Denied a Green Card for Income Reasons, As a Likely Public Charge.

Loss of Status Along With Job Usually Destroys Eligibility for Employment Benefits

If you are in the U.S. on a visa that's tied to your employment, such as an H-1B or L-1 visa, you could be facing loss of status along with loss of your job. That means you will have to leave the United States soon, unless you find new employment or are able to change your status.

For example, if you are in H-1B status and lose your job, you will likely not qualify for unemployment benefits because your work authorization is tied to a specific sponsor (employer), and you are not immediately available for reemployment.

However, there are foreign-born persons who have a a work authorization based on a separate status, not on a particular employer.

For example, an H-4 spouse with work authorization would likely qualify for unemployment benefits, because the H-4 EAD allows its holder to work for any United States employer immediately. (For more information concerning the H-4, see H-4 Visas for Family of H-1B Visa Holder.)

Another example is someone who has already applied to USCIS for adjustment of status (a green card).

How Soon After Termination You Might Need to Leave the U.S.

Not everyone needs to leave the U.S. overnight after losing work-based visa status. If you are working in the United States on an H-1B, H-1B1 L-1, TN, O-1, E-1, E-2, or E-3 visa, you might be eligible for a grace period, lasting until the end of your visa validity period (this is your status category expiration date as found on your most recent I-797 approval notice) or 60 days (whichever is shorter).

During that time, you will not be considered out of status after you are terminated. This grace period is meant to be used to find new employment, and you may not work until you find a new employer sponsor.

Learn more in After H-1B or Other Work Visa Ends: Will a Grace Period or Visitor Visa Let You Stay Longer?

If your validity period expires or 60 days have passed without your finding new employment or successfully applying for a change of immigration status, you will be considered out of status immediately, and should prepare to depart the United States.

How to Apply for Unemployment Benefits

If you're eligible for unemployment benefits, such claims should, in most cases, be filed directly with the state where the work took place. Find out details of the application process in How and Where Do I File for Unemployment?.