We’ve had so many questions from people wanting to hear from an immigration lawyer in Houston about unemployment benefits and stimulus payments during the Covid-19 pandemic. Here's the answer to your question, from an immigration lawyer: Do I qualify for unemployment and Covid 19 Stimulus Payments?
U.S. tax law is as complicated as U.S. immigration law, so we cannot provide any specific legal advice to you in this blog, but we can provide some general information that may help you understand if you can cash a stimulus check without an issue or claim unemployment benefits.
Can I get unemployment benefits if I’m not a U.S. citizen?
Unemployment benefits vary by state. In our home state of Texas, unemployment benefits generally are available to those who have valid work authorization during their employment period and are laid off or furloughed.
It is not generally available to people who quit or resign from their jobs or to people who are terminated from employment due to misconduct or other issues with their work performance. Many of our clients who are not U.S. citizens want to know if they can request unemployment. Here is some general information we hope will be helpful:
Can I ask for unemployment if I'm undocumented?
Possibly. In Texas, we know that to be eligible for unemployment benefits immigrants must satisfy the same basic requirements as other workers. They must be unemployed through not fault of their own (meaning that the person claiming unemployment benefits did not resign and was not fired due to issues with their performance at work), they must have enough wages earned or hours worked in their base period to establish a claim, and they must be able and available to work.
If the federal government approves additional unemployment benefits through proposed programs such as Disaster Unemployment Assistance, these would be considered “federal public benefits”, and they will only be available only to “qualified immigrants.”
“Qualified immigrants” are lawful permanent residents, refugees, people granted asylum or withholding of deportation/removal, people granted parole by the U.S. Department of Homeland Security for a period of at least one year, Cuban and Haitian entrants, certain abused immigrants, their children and/or parents, as well as survivors of trafficking.
It is not clear if the restrictive definition of “qualified immigrants” will apply to benefits under the temporary Pandemic Unemployment Assistance program established by Congress in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
Can I ask for unemployment if I have a work visa and I am furloughed or laid off?
Possibly. Again, employment law varies by state. In Texas, if you have valid work authorization during the base period at the time you apply for benefits and throughout the period that you will receive benefits, you can apply for unemployment benefits.
Generally, states should accept and credit the work histories of immigrants who had work authorization at the time they performed the work or whose work authorization is incident to their status.
If you are furloughed/laid off, have valid work authorization and meet the other basic requirements then you can apply for unemployment benefits.
Can I ask for unemployment if I am a permanent resident?
Yes - if you otherwise meet the basic requirements of your state’s unemployment laws you should be eligible to file for unemployment benefits as a permanent resident.
If I request unemployment benefits will I be considered a public charge?
Generally speaking, no. The U.S. Department of Homeland Security (DHS) does not list unemployment benefits under its new rules on public charge inadmissibility. The DHS final rule on the public charge ground of inadmissibility specifically states that DHS,..
“…would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post-secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination, as these are considered to be earned benefits through the person’s employment and specific tax deductions.”
The USCIS Policy Manual also specifically says that unemployment benefits are not considered in determining if a person is a public charge because unemployment insurance is considered to be an “earned” benefit.
Can I accept a stimulus payment if I'm not a U.S. citizen?
On March 27, 2020, Congress passed an economic stimulus bill that authorizes stimulus payments to taxpayers as economic aid during this very difficult time.
Who is eligible to receive a stimulus payment?
All taxpayers with a valid social security number are eligible except for two different categories of people:
- “Nonresident aliens” under the tax code (NOTE: This is not the same as having a “green card”- read below!)
- People who are used as a basis for deductions for another taxpayer (such as people listed as another taxpayer’s dependents)
If I don’t have a green card am I a “Nonresident Alien”?
Not necessarily. According to the U.S. tax code, a “nonresident alien” is a person who is not a U.S. citizen and does not pass either the IRS’s “green card test” or the “substantial presence test” used to determine tax status.
- Green card test - you pass the “Green Card test” and are considered a “resident alien” if you have a green card (a “permanent resident” card) and you spend at least 1 day of the year in the United States.
- Substantial presence test - The Substantial Presence Test has two parts - the 31-day and 183-day tests. A person must meet the requirements in both parts to pass this test.
- The 31 day test is simple: Were you present in United States at least 31 days during current year? If so, you pass this part.
- The183 day test is much more complex and involves looking back over the last three years and using a formula to determine if you meet this test. You can read about the formula for the 183-day test here.
There are also some exceptions to the requirement of meeting the substantial presence test. We recommend you work with a tax professional as well as an experienced immigration lawyer to determine if you will be considered a “resident alien” for tax purposes or not.
So even if you do not have a green card, you may be considered a “resident alien” and eligible to get a stimulus check based on meeting the substantial presence test described above. Many DACA recipients and people with Temporary Protected Status (TPS) have asked if they will be eligible to receive these payments. As individuals who likely pass the substantial presence test and who have work permits and social security numbers, DACA recipients generally are eligible to receive stimulus payments.
We recommend you work with both your immigration attorney and a tax professional to determine if you are a “resident alien” and what tax benefits are available to you and if receipt of these benefits affects your immigration status.
Remember that even if you are not a nonresident alien and you are not listed as a basis for someone else’s tax deductions, you must have a valid social security number to get a stimulus payment.
If I accept a stimulus payment will I be considered a “Public Charge”?
No. The government benefits that subject a person to the Public Charge ground of inadmissibility are expressly listed in the Code of Federal Regulations. Some of these benefits include Supplemental security Income (SSI), Temporary Assistance for Needy Families (TANF), and cash benefit payments. You can read more about the Public Charge rule here.
I am eligible to get a Stimulus Payment but I haven’t received it yet. What do I do?
If you’ve read this far, and you have determined that you’re eligible to get a stimulus payment, that’s great news. If you haven’t gotten your stimulus payment yet, you’re probably anxious to know when you can expect it. You can go to the IRS Get My Payment Page for information on how to check the status of your Stimulus Payment.
Immigration Lawyer in Houston
We highly recommend that you work with an experienced immigration attorney and a reputable tax professional to be sure that your taxes are in order and you understand what to expect.
We also highly recommend that you start working on your immigration status now. USCIS is working on applications even though they are closed to the public. If you receive a stimulus payment, unemployment benefits, and/or a tax refund for tax year 2019, now is the time to take action in your immigration case.