My girlfriend is an O-1 visa holder, and her sponsoring employer just laid her off (and half the rest of the company) due to COVID. Is she eligible for any unemployment benefits during her 60 day grace period?

by DontMicrowaveCats

So my girlfriend is here on an O-1 from the UK… she’s worked/ lived in the US almost 3 years. We’ve lived together almost 2.

Unfortunately her industry has taken a hard hit from coronavirus, and her employer laid off half the company. This means she lost her sponsorship, and has 60 days to either return home or adjust status to a 6 month tourist visa.

She’s paid state and federal taxes since she’s been here…we’re trying to figure out if she’s eligible to collect unemployment benefits for any period of time. The hard situation right now is she has 0 safety nets, and is unlikely to find work anywhere in her field until this is all over. There also aren’t any flights to the UK right now.

Neither of us were quite ready to get married … and didn’t want to rush into it just for a green card, though we’re discussing it now. In the mean time she needs to cushion the financial situation somehow.

 

Rely:

This can be a complex question, as both federal and state law and regulations require that an unemployment benefits claimant be ‘able and available’ to work, and generally must possess an immigration status allowing work. In a situation of an employer-specific visa, where the employer is not furloughing the employee but is instead terminating the employee, you should really strongly consider consulting with a lawyer familiar with both federal immigration law and state unemployment benefits law for legal advice about that situation when looking at a potential claim.

 

www.law.cornell.edu/uscode/text/42/503

the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act [26 U.S.C. 3301 et seq.], [must] includes provision for—

A requirement that, as a condition of eligibility for regular compensation for any week, a claimant must be able to work, available to work, and actively seeking work.

 

www.law.cornell.edu/cfr/text/20/604.3

A State may pay UC only to an individual who is able to work and available for work for the week for which UC is claimed.

 

www.law.cornell.edu/cfr/text/20/604.5

(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.

 

Example of state implementation of those requirements:

www.mass.gov/files/documents/2016/08/wm/br-109625.pdf (p. 3)

As a general rule, however, upon losing his job, the claimant loses that authorization to work under the H-1B visa, which is employer-specific. See U.S. Department of Labor Federal-State Unemployment Compensation Program; Unemployment Insurance Program Letters Interpreting the Federal Unemployment Insurance Law (August 20, 1986).

The U.S. Department of Labor (DOL) regulations governing eligibility for unemployment insurance require that an alien must be legally authorized to work by the appropriate U.S. agency in order to be considered “available for work.” Specifically, 20 CFR § 604.5—Application— availability for work, provides, in relevant part, as follows:

(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. (Emphasis added.)

Thus, in order to find the claimant available for work under G.L. c. 151A, § 24(b), the claimant must be legally authorized to work by the appropriate U.S. agency, currently the U.S. Department of Homeland Security (DHS).

 

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h/t tvtoo

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