Which Immigrant Workers Qualify for Unemployment Under the CARES Act?

Learn which categories of immigrants in the U.S. might be entitled to state unemployment benefits, and whether there are risks to applying.

With the onset of the COVID-19 pandemic, millions of Americans have found themselves out of work. For immigrants, figuring out whether they qualify for unemployment is not always easy.

Here, we will discuss several types of unemployment compensation. These benefits are administered by individual states, and the laws and exact requirements can differ significantly. Check your own state's regulations for specific information.

Broadly speaking, state unemployment benefits are set to a certain amount, limited to a certain period (26 weeks in most states), and available only to people whose employers pay into the unemployment law system. Employees also typically must have earned a certain amount in each base period (usually a year, and immediately prior to one's application for unemployment benefits).

Regular state unemployment benefits usually apply only to wage workers (who receive W-2s). They typically do not cover self-employed people, independent contractors, workers at various nonprofits whose employers do not pay into unemployment, gig workers, and part-time or low wage workers who do not earn enough to qualify.

Under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act), however, unemployment compensation has greatly expanded. The CARES Act changes unemployment in several ways, and is complex, but to summarize, it has:

  1. expanded the amount of time someone can receive unemployment benefits from 26 to 39 weeks
  2. provided a $600/week increase in benefits through July 31, 2020, and
  3. expanded unemployment benefits to people who do not usually qualify for them, such as independent contractors, the self-employed, gig economy workers, and part-time workers who ordinarily do not earn enough.

People who qualify for state unemployment benefits will still receive state benefits, plus an additional $600. Those who do not normally qualify for unemployment assistance will receive $600 and (in most cases) the state's minimum unemployment compensation amount as part of Pandemic Unemployment Assistance.

However, for all types of unemployment, only certain immigrants will qualify.

Requirements for Immigrants to Receive Unemployment

In order to receive unemployment, immigrants must first be eligible to work (which means that undocumented workers across the board do not qualify).

An immigrant must be authorized to work at the exact time of filing for benefits and during the entire period the immigrant receives benefits (so, valid work authorization is required). The person must also be "able and available" to work.

Next, the immigrant must have been "permanently residing under color of law" (PRUCOL). PRUCOL is a legal term of art, and its exact definition varies from state to state. However, it ordinarily means that the immigrant lives full-time in the United States and is authorized to work.

In order to apply, you will need your valid employment authorization document (if you have one), Social Security number, and alien number (A-number).

Only the work you've done while legally authorized to work counts toward your employment history and calculating your state unemployment benefits.

Which Categories of Immigrants Qualify for Unemployment Benefits

The following categories of immigrant should be eligible to receive unemployment benefits, provided they meet all the other requirements:

  • lawful permanent residents
  • DACA (deferred action for childhood arrivals) recipients with valid work permits
  • TPS (temporary protected status) recipients with valid work permits
  • H-4 visa holders with work authorization
  • asylees and refugees with work authorization
  • U and T visa holders with work authorization
  • TN visa holders, and
  • immigrants with valid entry into the U.S., and work authorization, who are able and available to work.

Some immigrants will not qualify, including:

  • undocumented immigrants (however, a few states, such as California, do offer other relief to undocumented immigrants laid off due to COVID-19)
  • H-1B or some L-1 visa holders (whose status is tied to their employment with a specific employer, so if they are laid off, they will be out of status and thus ineligible to apply for unemployment)
  • most J-1 visa holders (though this can also depend on your state's unemployment requirements), and
  • immigrants lacking work authorization or whose work authorization has expired.

Best Options for Immigrants Who Don't Qualify for Unemployment

If you fall under an immigrant category that does not qualify for unemployment compensation, there are still some options to consider.

If you cannot work, request that your employer place you on unpaid leave, rather than terminate you. Your employer is required to maintain your group health insurance policy if you are on unpaid leave, as opposed to terminated.

Also, if you are on unpaid leave, it means you retain your employment and do not need to be rehired when your employer wants you to return to work. This is especially important for immigrants who might lack or have lost work authorization, as it means your employer will not need to verify your employment again before you resume work.

Even if you do not qualify for unemployment, check your state's laws to see if you qualify for other relief. For example, starting May 18, 2020, in California, the California Department of Social Services (CDSS) is providing one-time $500 grants to certain qualified undocumented immigrants.

Receiving Unemployment Benefits Does Not Trigger Public Charge Concerns

Receiving unemployment compensation categorically does NOT trigger a public charge investigation. Unemployment is an earned benefit and is not in the category of means-tested benefits that receipt of can make someone a public charge and therefore "inadmissible," in immigration law terms.

The one caveat is that, while receiving unemployment compensation will not make you a public charge, losing your job potentially could make you more likely to be deemed a public charge, especially if you also lose your health insurance and benefits.

If you are unsure whether you will qualify for unemployment, consult an employment attorney prior to filing. At this point, there appear to be no negative consequences to filing for unemployment, even if you are ultimately denied (provided that you have legal entry into the U.S. and work authorization). This could, however, change in the future. Make sure to answer every question honestly, to prevent a fraud determination.

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