Unemployment insurance, as described in a recent blog post by our Labor and Employment colleagues, is a “joint federal-state program, administered separately by each state following guidelines established by federal law.”  While the requirements of these programs vary from state to state, eligibility criteria generally exclude nonimmigrants whose work authorization is tied to a specific position with a specific employer (e.g., TN, H-1B, and L-1 workers).

This is especially true of the “able and available for work” criteria.  With the onset of COVID‑19, some states have relaxed or waived these criteria so that some nonimmigrants may now be eligible for unemployment if they are furloughed or have reduced hours.

What are the “able and available for work” and “work search” requirements for unemployment insurance?

Under federal regulations, those applying for or claiming unemployment benefits must be able and available to accept suitable positions while they collect benefits and must be actively seeking employment.

Under normal circumstances, “able and available for work” generally means a worker has no barriers to accepting new employment.  Examples of such barriers are long-term sickness or disability, medically required isolation, lack of access to transportation, full-time caregiving obligations, or legal barriers, including the restrictions that apply to many nonimmigrants.  Workers must also actively be seeking employment opportunities by, for example, participating in training programs, applying for jobs, or attending professional networking events.

Under these rules, nonimmigrants may not qualify for benefits, but neither do other employees who are on temporary leave from work due to furlough or reduction in hours and who expect to return to their old jobs once circumstances change.

How do these requirements affect nonimmigrants?

Since many nonimmigrants only have work authorization for a specific role with a specific employer, they are normally unable to meet the “available for work” and “work search” requirements because there is a legal barrier to their freely accepting a new role with a new employer.

Virtually all nonimmigrants must pre-authorize a change of employer with federal immigration agencies, although the procedures to do so vary according to visa category.  Some require complicated and time-consuming filings with U.S. Citizenship and Immigration Services; others must re-apply at a U.S. consular post abroad.

Even Canadian TN workers, who enjoy the simplest job portability procedures, are normally disqualified by the “available for work” requirement for unemployment benefits.  For them, the “legal barrier” may be nothing more than a quick round trip to Canada and back, so they can submit a new application to a U.S. Customs and Border Protection officer at an air or land port of entry on their way back into the United States.

How has the meaning of “available for work” and “work search” changed under the emergency conditions created by COVID-19?

Currently, governors of many states have issued executive orders relaxing key requirements to allow individuals affected by COVID-19 to get unemployment benefits.  Once the legal barrier preventing nonimmigrants from being immediately available for employment is lowered or eliminated, those individuals become eligible on an equal playing field with U.S. workers.

For example, in California, the work search requirement has been waived for workers who are “temporarily unemployed due to COVID-19 and expected to return to work with your employer within a few weeks.”

Like California, Oregon has also extended benefits to those temporarily out of work.  According to the state’s unemployment website:  “Benefits may be available to those who are on a temporary layoff.  These benefits occur for claimants whose employer stops operation for a short period of time, such as cleaning following a coronavirus exposure or by government requirement.  Workers can get UI benefits, and do not need to seek work with other employers.  You must be able to work, stay in contact with your employer, and be available to work when called back.”

In a few states, like Georgia, benefits are even available to workers who have stopped working due to increased childcare obligations resulting from school closures.

Other states, including New York and Texas, have waived the standard 7-day waiting period for benefits, but continue to enforce all other requirements, including “work search” and “availability for work” criteria.

As with everything else about COVID-19, the facts of the situation are changing frequently and vary from location to location.  Workers should consult the websites of their state unemployment offices on a regular basis to stay updated with the latest details.