The recent stay-at-home orders closed many businesses within a matter of days and have left a record number of Americans without jobs and applying for unemployment benefits. Amidst the COVID-19 pandemic, there is heightened anxiety among immigrants and non-citizens around receiving medical care and applying for unemployment benefits. Grossman Young & Hammond is providing this update for informational purposes, to explain which noncitizens may apply for unemployment benefits and what future impact seeking such benefits may have for those seeking to change or adjust status, or apply for a visa at a US overseas consular post, considering the new public charge requirements.
Can I apply?
To be eligible for unemployment insurance, immigrant workers, as all workers, must demonstrate that they meet the basic requirements to qualify. Generally, there are three requirements: 1) the worker lost their job through no fault of their own; 2) they have worked a certain number of base hours; and 3) they must be “able and available” to work. It is important to note that, in addition to the federal standards, each state has its own laws around unemployment insurance that determine state-specific eligibility therefore it is important look into your state’s laws surrounding qualification. Whether a noncitizen qualifies for unemployment insurance in large part depends on what status someone was in while working and when applying for unemployment benefits:
- Undocumented workers without work authorization do not qualify for unemployment benefits.
- Noncitizens in the US on employment-based visas generally do not qualify for unemployment benefits; because most employment-based visas are employer specific, once these individuals cease employment with their sponsoring employer they are not considered “able and available” to work.
- Green card holders or legal permanent residents, refugees, and asylees are qualified to apply for unemployment benefits. Those in removal proceedings with work authorization are permitted to apply for unemployment benefits.
Should I apply?
In addition to whether a noncitizen is permitted to apply for unemployment benefits, there is the consideration of the new public charge requirements. In August of 2018, the Trump administration made headlines with new “public charge” requirements, which now make getting a green card and certain non-immigrant visas more difficult for those who have received public benefits in the United States. United States Citizenship and Immigration Services (USCIS) explicitly excludes unemployment benefits from the list of public benefits they will consider in their public charge analysis because these benefits are considered to be earned through the person’s employment. However, an immigration official could still consider whether someone received unemployment benefits in their “totality of the circumstances” analysis of whether someone is a public charge. While receiving unemployment is unlikely to be the reason a green card or visa is denied, it is a risk.
Medical Care
Generally, receiving Medicaid is one of the public benefits that U.S. Citizenship and Immigration Services (USCIS) will consider when determining if someone is a “public charge.” It is important to note that USCIS will not consider testing, treatment, or preventative care such as vaccines related to COVID-19 as part of a public charge inadmissibility determination even if the treatment was paid for by Medicaid. As such, noncitizens should seek medical care for COVID-19 without the worry that it could in the future hurt their ability to adjust status. USCIS recommends that when someone applies to adjust status, they should provide a letter and documentation relating to the current pandemic to explain any medical services they sought out during this time.
Conclusion
We hope this update has answered some of your questions regarding unemployment compensation and Medicaid in the era of COVID-19. Because this update is provided for informational purposes only it should not be construed as legal advice. Grossman Young & Hammond attorneys are available to consult regarding any specific questions you may have.
