Unemployment Benefits for Nonimmigrants

If you are currently in the United States on a work visa, and lost your job, due to the Coronavirus outbreak or otherwise, there are some cases when you could collect unemployment benefits. However, this depends on whether you have some separate right to remain in the United States and are able to work for a different employer than the one that laid you off. Every state has their own requirements that must be met in order to collect unemployment; however, most states require that a person must:

  1. Show that they were in satisfactory immigration status and authorized to work in the United States when earning the wages, they used to establish their claim; and
  2. Provide proof that they are currently in satisfactory immigration status and are authorized to work each week that you claim benefits.

The second criteria is the one that hinders many nonimmigrant workers from qualifying since they only are authorized to work for the company that laid them off, therefore, would not be authorized to work for each week they claim benefits.

For example, if you are on an E-3 or an H-1b, and you are laid off, you would not qualify for unemployment because you are no longer authorized to work for another employer. However, if you are on a general work authorization card, due to being a spouse of someone on a nonimmigrant work visa (e.g. E-2, E-3, L-2, etc.), then you would qualify since you are able to work for any employer at any time, so long as the primary holder of the visa continues to remain in status and employed. Also, if you are applying for adjustment of status, and hold a work authorization card, you too could likely qualify since you are also able to work for any employer during the period you can collect unemployment benefits.

Before you make any decisions on applying for any public benefit be aware that for some, but not all non-citizens who wish to apply for some future visa or status in the U.S., in particular for lawful permanent residence, the hurdles to be cleared include proving that one is not inadmissible as a likely “public charge.” You have the burden of showing that your finances are not in a precarious condition that you might end up receiving welfare or government assistance in the future.

Fortunately, unemployment insurance is not among the government’s list of benefit types that make someone a likely potential public charge. However, if you end requesting assistance other than unemployment insurance coverage it may cause a bar to adjustment under the public charge rules.

Be aware that each state has their own criteria required to be met in order to collect unemployment benefits. Visit their websites and/or contact them directly to verify their specific requirements to determine if you would qualify.

Showing 38 comments
  • MV
    Reply

    What is it for a “E visa” holder (not spouse) who is furlough as the company is not an essential business and had to close. Can they collect unemployment?

    • Andrea Szew
      Reply

      A principal E visa holder is only authorized to work for the company that sponsored them for the visa. Therefore, likely will not qualify because you are not able to work for any other company if opportunity arose while you are accepting unemployment. Also, be very careful if you are the owner/investor because if you are then you could lose the entire investment visa.

      • Bel
        Reply

        Thank you this is so helpful!

  • James
    Reply

    What about E-2 treaty investors? I am currently on the E2 treaty investor visa, but on company paper i am also an employee getting monthly paychecks. I own the company 100%. I’m in California, and EDD says E-2 treaty investors are eligible, and USCIS announced that they will not consider unemployment insurance as the public charge rule. The business is currently not operating due to stay home order but it is still being “maintained” in a sense that monthly rents and utilities bills are being paid. Will it be okay to receive the UI for one month as the business isn’t permanently closed and will be open immediately as soon as the stay home order is done?

    • Andrea Szew
      Reply

      You are correct that unemployment benefits will not fall under the Public Benefits Rule and harm future applications. However as to collecting while on an E-2 when you are the investor/employee you need to be careful. If you were tasked to run the business in the United States and now you are not able to work because the business is closed then you are not working for the company you are supposed to be working for and cannot work anywhere else therefore arguably you shouldn’t qualify. Be careful that the EDD is not referring to spouses of E-2s which are also on the same type of visa that have a general work authorization card and can work anywhere because they would definitely qualify for unemployment benefits.

  • Andrew Morton
    Reply

    What about an O-1 Visa with an agent sponsor? Working as a freelancer and losing out as one’s particular industry is shut down?

    • Andrea Szew
      Reply

      This is a difficult issue and really depends on your particular petition and what work you provided to USCIS that you were going to be working on while here on the O-1. If you were working on multiple projects that were temporarily shut down then it is a possibility, but remember you would need to qualify under the exceptions for independent contractors since you cannot qualify as a employee.

  • Jordan Peters
    Reply

    I am also on an O-1B artist visa, with an agent sponsor, working as a freelance musician. From what I understand, we have a 60 day grace period to find new work. I am technically not tied down to 1 employer and remote work within my field is a possibility. Can we claim Unemployment for 60 days or less then? Also, can I please ask you to clarify your last comment, where you say “…but remember you would need to qualify under the exceptions for independent contractors since you cannot qualify as a employee.” When you say “you must quality”, are you referring to guidelines for unemployment? Thank you for you time and help!

    • Andrea Szew
      Reply

      With O-1Bs it is very case specific and I would have to really look at your particular petition and who your sponsor is. If you are here on an O-1B and you were petitioned by an agent or a representative so you can work for many different employers than it might be difficult to qualify since you can work for anyone in your area so even if you are not working currently you are arguably still in status and able to work at any time for any other employer in the area that you are found to be extraordinary. Therefore, the 60 days doesn’t necessarily apply to your situation. Now with regard to unemployment that is something you would have to check with the local unemployment office, but again you can work for anyone in that area with the visa you arguably have (again would have to look at your specific petition to be able to tell 100%).

  • Caitlin
    Reply

    What about furloughing employees on: L1/ F1A/ E2/ H1B/ TN? None are entitled to PUA? And they may have to leave after 60/90 days?

  • Laura
    Reply

    Hi, great article! Is there an obligation for E-3 visa holders to be able to financially support the E-3D spouse? I seem to recall this from somewhere. I am the spouse of an E-3 Visa and lost my job due to Covid-19 – I have submitted a claim for unemployment but am now worried! Thank you

    • Andrea Szew
      Reply

      No there is no obligation per se for an E-3 to be able to support and E-3D.

  • Khrystyna
    Reply

    Hi, I have been in states since 2013 I had fiancée k-1 visa, but already have green card that expires in 2026. But my green card still has the last name from previous marriage and I remarried in 2019 and all the Alabama ssn, driver license are issued under new last name. I sent them copies of divorce and marriage certificates. I currently still waiting for my immigration status to be verified even though my separation status already cleared with unemployment department. Can I have any issue with my immigration status and being denied to collect UI? Thank you!

    • Andrea Szew
      Reply

      Thank you for your comment. Your case is extremely case specific and would need more looking into. You should try to make sure to update your current legal name with all agencies to make sure that everything is consistent.

  • Khrystyna
    Reply

    Thank you for your response. I’d have to apply for new green card which can take up to 6 month. I don’t see any other option.

    • Andrea Szew
      Reply

      You can file a form to change the name on your green card or when you file for naturalization you can change it then.

  • Lilac
    Reply

    Hi, another O-1 here! I work as a freelance artist (O-1 petitioned by an agent), but due to COVID-19, I have a massive drop in commissions and clients. If I apply for unemployment benefits as a O-1 visa holder, will it impact my future O-1 visa extensions? I’m afraid that if I decide to apply for the O-1 visa extension in the future, the Consular Officer could perhaps take the fact that one received unemployment benefits into account in his/her totality of the circumstances analysis.

    Also, I’ve read that O-1 visa holders have a 60-day grace period, during which we can seek unemployment benefits and search for new work – will it still raise issues about my future visa extension if I use some time of this period to collect UI benefits?

    Thank you very much in advance, your advice is greatly appreciated!

    • Andrea Szew
      Reply

      Unemployment benefits if you qualify do not count against you under the public benefit rule but any other type of benefit might affect you so be sure you know what benefit you are taking (UI is an earned benefit given to those who have been paying into the system through payroll tax withholdings). Be careful and please read other responses above or below that might further answer your questions.

  • Claire Murphy
    Reply

    Thanks for this info. I am struggling to find concrete answers to my situation. I am on an O2 visa, supporting an O1 visa holder musician. His tours have been cancelled therefore I am out of work temporarily until the dates are rescheduled etc. I am allowed to stay in the US as it is a 3 year visa. I live here and have been present here long enough to pass substantial presence test I believe! I have filed 2016-2019 US taxes. Can I claim the PUA as I am ineligible for UI as I cannot work for anyone else? Will it affect future visa applications/renewals or green card applications?

    • Andrea Szew
      Reply

      As stated in other responses you have to be very careful claiming you are unemployed while on a visa in the US for two reasons. If you are not working and have no work here in theory you are supposed to leave and go back to your home country (brutal but true and what immigration argues) and also when you take any other benefit besides UI you could have it come back and hurt you on future applications because of the public benefit rule. It is such a grey area and is really a case by case situation, but like I always say I would make decisions based on your long term goals and not just on short term need (realize easier said than done).

      • Claire Murphy
        Reply

        I appreciate you taking the time to answer my questions. Thank you Andrea.

  • Gary Long
    Reply

    Hey Andrew!

    Still trying to work out my case.

    I’m in the states on an E2 investor visa. My business is myself as a cinematographer. While I can only work my my LLC, my LLC can work for any employer / production company in film / tv. I own my company 100% and it is just myself.

    I applied for PUA since I haven’t been furloughed, there’s just no work in the film industry right now. EDD accepted my application however I’m slightly confused and anxious over the “able and available” question.

    While California has temporarily removed the criteria to look for work, you still need to be available for work. I took that as a yes. I work for my business and my business (only me) is available to any production company / film employer.

    I also have EDD my visa status when I applied and it’s all been approved.

    Any ideas if I’m actually ok?

    • Andrea Szew
      Reply

      You like so many are in a hard position because of being on an E-2. Be very careful as an E-2 business owner collecting unemployment because you are here to run the business and were qualified to get the E-2 because of this so if you are now unemployed that means you are not running the business anymore so really the business is closed and you will lose the E-2. Also, just a side note…you might want to talk to the attorney that did your E-2 about having an E-2 with only you employed. Not a good idea and is not really the type of business that should be on an E-2. Please be careful.

      • Gary Long
        Reply

        Thanks for this.
        I applied for PUA Un employment, this is available for people small business owners, self employed and indie contractors. Its also available for people who have just have their hours reduced or are now partially employed due to COVID.

        Because of this am I able to argue that my business is still running, its simply standing still with no hours as the pandemic is occuring. I haven’t furloughed myself or closed the business. Simply applied for PUA as the pandemic as severely affected my ability to work.

        Thoughts on this?

        Thanks

        • Andrea Szew
          Reply

          You would need to discuss with your local unemployment office because every state is different and has different requirements.

  • anita nayyar
    Reply

    Hey ,what if your an 01 visa holder and just work is off due the pandemic at the moment. I have an issue filling out the claim as they ask for the foreign alien citizen number and i dont have it.

    Any suggestions ?

    • Andrea Szew
      Reply

      Unfortunately you will not have an A number because you are not a resident or citizen of the US. If they require this it will be difficult to collect.

      • Claudio Tristano
        Reply

        I’m also on a O1 visa and when I first signed up I think I put “foreign passport with I-94” or something like that. It seemed the most appropriate option since there’s no option for O1 visas. I’ve done it twice now, the first time at the beginning of April and the second time right after April 28th when they introduced the PUA.
        When I login on my EDD account nothing shows up, not even in the claim history.
        I just don’t know if I did something wrong or it’s still being processed.
        Any help is much appreciated.
        Thank you.

        • Andrea Szew
          Reply

          That is a question for the EDD. I wish I could help with this but this is a something you have to discuss with the EDD. So sorry you are having to deal with this there are so many in the same situation.

  • Kos Raza
    Reply

    Hi Andrew,
    Firstly, I’m on an E-2 visa (100% owner of the “S corp” company & also give myself a monthly Paycheck). My store is temporarily closed due to Covid-19 and would reopen whenever the Minnesota Governor says so.
    I checked my states website but it does not state any specific conditions for non-immigrant workers or for my Investor visa.
    From what i have been reading, I would be ineligible to apply for any Unemployment Insurance, even if it for a short period of time, is that correct ?

    Second, my wife has a Work Authorization card, but her card expired last year in Sept & we reapplied but it has been 8 months and it’s still in processing and taking time due to the new fingerprinting law. Is she eligible to apply for Unemployment benefits at this point ?

    • Andrea Szew
      Reply

      You need to be careful with regard to taking unemployment when you are the one running your company. If company is closed then could put E-2 in jeapardy since that is what you are here to be working under on the E-2. Your wife could qualify if she is work authorized. Need to check with local office to make sure they will take a timely filed extension of work authorization as evidence she is able to work.

  • Pete Hansen
    Reply

    I am on an E3 visa in the USA and to save money the school district is furloughing teachers for 1 day a week for 5 weeks. For each day they are claiming unemployment for us from the state plus accessing money from the federal cares act due to the covid-19 pandemic. Can I do this as I will still be employed by my school district and this is only temporary furlough for 5 days? Will this break my E3 status?

    • Andrea Szew
      Reply

      You need to be very careful to stay in status under the terms of your E-3 and LCA requirements. So long as you are within these parameters you are fine. The school really need to do this and make sure they do not violate the LCA that they signed.

  • Kat S.
    Reply

    What are other option if you don’t have work authorization on the full base wage year and when you applied for unemployment benefits is you already have a green card few months before the covid19 happened? It is not my own fault my i dont have a job now. It is because of the covid19 and governor order.

    • Andrea Szew
      Reply

      I am so sorry you are going through this and there are so many like you. Unfortunately I don’t have the answer to this question that is on all our minds.

Leave a Comment