The COVID-19 pandemic has resulted in dramatic layoffs and reduced work hours for employees across the United States. In the field of immigration, one of the primary concerns is whether foreign national workers can and/or should apply for unemployment benefits in their respective states. Answering this question requires review of both the immigration laws and the respective states’ rules for accessing unemployment benefits.
Immigration Law Considerations
Under immigration law, employment-based nonimmigrant visa classifications require that the foreign national beneficiary continue to work for the petitioning organization in order to maintain his or her status. Therefore, once the nonimmigrant stops working, he or she is no longer maintaining that status unless he or she is within the nonimmigrant grace period.
USCIS regulations provide a grace period of up to 60 days following termination of employment. The grace period is the shorter of 60 days and the remaining validity period of his or her underlying I-797 approval notice governing his or her status. The 60-day grace period applies to nonimmigrants in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classifications.
During the 60-day grace period the nonimmigrant may not work for another employer. The grace period may be used to find a new employer to sponsor the nonimmigrant, to travel, or to wrap up one’s affairs prior to departing the United States. Nothing in the immigration regulations prohibits receipt of unemployment benefits during this 60-day period, if it is possible to obtain those benefits during that time period. However, remaining in the U.S. beyond the 60-day grace period would be a violation of status.
State Unemployment Law Considerations
Filing for unemployment, in many states, may be considered a declaration by the beneficiary that he or she is available to work for other employers, which may be in direct contradiction of the terms of the underlying petition. For example, New York state requires that in order to qualify for unemployment, the applicant must certify that he or she is “available” to work. This is a legal untruth for those in a nonimmigrant visa classification tied to a specific employer; therefore while immigration law does not preclude receipt of such benefits, state laws may preclude qualifying due to the restrictions associated with one’s visa classification.
We realize during this period of uncertainty that employers continuing to keep visa workers on payroll may cause detrimental financial harm to the business. Therefore, we recommend, first, that the employer determine if employee has any PTO or sick time that can be used, if necessary.
We also recommend that if the employer has less than 500 employees, the employer check with their respective accountant and/or U.S. Representatives to determine if the employer qualifies for relief under the CARES $2 trillion stimulus package. The CARES stimulus includes $350 billion dedicated to prevent layoffs and business closures in order to take into account workers who must stay home during the outbreak. It is our understanding that companies with 500 employees or fewer that maintain their payroll during coronavirus may receive up to eight weeks of cash-flow assistance. It is also our understanding that if employers maintain payroll, the portion of the loans used for covered payroll costs, interest on mortgage obligations, rent, and utilities may be forgiven.
In addition, AILA (American Immigration Lawyers Association) is advocating on our behalf requesting that the government enact emergency measures to deal with any status issues that may arise during this period. As new information becomes available, we will issue updates.
Meanwhile, we highly recommend that employers remain in contact with their respective immigration attorney at Harris Beach PLLC before enacting any changes that may detrimentally affect the status of nonimmigrant employees.
