States and the federal government have not yet figured out how to administer supplemental unemployment benefits under the CARES Act. However, two things seem relatively clear; employment authorization is required to apply, and receiving benefits is not considered a negative factor in the public charge analysis.
It is important to emphasize the complexity of the recently passed law; in a 335-page document, there are three separate sections; each of which provides different criteria for unemployment insurance benefits. Furthermore, states have some discretion in what benefits they choose to award. In some circumstances, benefits will likely be awarded to those who would not otherwise qualify for unemployment benefits.
However, this does not mean that immigrants who are not authorized to work in the United States are eligible to receive benefits. That is still prohibited by the Immigration Reform and Control Act of 1986. Applying for benefits if you are not authorized to work in the United States could lead to serious, negative immigration consequences.
On the other hand, if you are authorized to work in the United States, you shouldn’t worry about an unemployment application negatively impacting your immigration status—at least not on public charge grounds. The USCIS Field Manual specifically identifies unemployment benefits as an earned benefit (https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10). Further, unemployment benefits are not listed on any of the relevant USCIS forms, such as I-944 (Declaration of Self-Sufficiency) or I-485 (Adjustment of Status Application) form as being benefits that would be subject to Public Charge analysis.
The amounts of supplemental unemployment compensation under the CARES Act may be significant. Sections 2012, 2014, and 2017 of the CARES Act provide a framework for the administration of benefits. States still need to make decisions about to what extent they will participate in some aspects of the programs.
Some states, such as Wisconsin, are asking that potential applicants wait to submit Coronavirus-related claims because they have not yet figured out how to administer benefits Public charge is not a significant factor for those who have employment authorization. Those who do not have employment authorization should consult an attorney before applying for benefits.
This information is intended to educate and should not be taken as legal advice. Francis Law Center is specialized in immigration law only and does not handle unemployment compensation cases or issues.
Written by Francis Law Center Staff Daniel Lurker
