I am in the U.S. on E-2 employee visa. Can I apply for unemployment benefits due to the Coronavirus? Can my spouse apply for unemployment benefits due to the Coronavirus?

By March 25, 2020March 31st, 2020Covid 19, E-2 Visa
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Due to the coronavirus outbreak, many of our clients ask us the following question: Can I apply for unemployment benefits? If I apply for unemployment benefits, will the government determine that I am likely to become a public charge?

Let’s analyze the following situation: You are in the U.S. on an E-2 employee visa and you just became unemployed due to the Coronavirus outbreak.

Could you apply for unemployment benefits due to Coronavirus outbreak?

Please note that every state has its own requirements you will have to meet to qualify for unemployment benefits. However, the general rule is that a person applying for unemployment benefits must be “able and available” to work at the time he/she is claiming the unemployment benefits. This means, that you have to be legally authorized to work in the U.S. at the time you are applying for the unemployment benefits.

If you are currently in the U.S. on an E-2 employee visa, you are only authorized to work for the specific E-2 company, and you cannot work for any other employer. Therefore, you would not be able to prove that you are available to work in the U.S. as your visa authorizes you to only work for the one E-2 company and you are not available to accept any employment in the U.S. Therefore, if you become unemployed, you would not be able to prove that you are able and available to work in the U.S. and could not collect unemployment benefits.

Can my spouse who is in the U.S. on an E-2 visa and has work authorization apply for unemployment benefits?

If your spouse becomes unemployed due to the Coronavirus outbreak, he/she could potentially apply for unemployment benefits as the work authorization allows your spouse to accept any employment in the U.S. Therefore, your spouse may be able to apply for unemployment benefits if let go from a job, as your spouse’s work authorization does not require that he/she work for a specific company, and therefore, your spouse could show that he/she is able and available to work in the U.S.

However, there are other state-specific requirements your spouse will have to meet to be able to get unemployment benefits, and he/she should review these requirements in detail before applying for unemployment benefits. The requirement that your spouse is able and available to work is only one of several requirements.

Please also note that if your spouse’s work authorization expired, he/she cannot claim unemployment benefits as he/she would not be able and available to work in the U.S.

My spouse applied for unemployment benefits. Will the government determine that he/she is likely to become a public charge?

Given the new public charge rule which went into effect on February 24, 2020, many clients are concerned that applying for unemployment could be seen as a negative factor in a public charge analysis. Under the new law, unemployment benefits were specifically excluded from the public charge rule and are not one of the benefits considered under the public charge rule. However, if you decide to apply for a non-immigrant visa in future, the Consular Officer could perhaps take the fact that you received unemployment benefits into account in his/her totality of the circumstances analysis.

If you are currently in the U.S. on ESTA, please read our blog post on Satisfactory departure during Coronavirus when you click here.

We have provided a number of links with key immigration information related to the Corona Virus.

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20 Comments

  • Dacia says:

    Esquire,

    first of all, thank you for this article.

    I have a question, I am on an E1 Visa. Mi employer (sponsor) didn’t fire me, but he did cut my hours and salary. I asked for unemployment and I started getting the benefits.

    Obviously I declared that I am not American and I am here with a Visa.
    Apparently there was not problem because I am receiving the money.

    The accountant of the Company I work for says that it is weird because theoretically I am not allowed to get unemployment benefits because I am not available to work for somebody else, since I would need a new Visa.

    But as I said, right not I am not being fired but my hours and salary have been cut off.

    Do you have any possible clarification about that?

    Thank you so much.
    Stay safe.

  • Gary long says:

    James did you ever get an exact response to this?

    I’m in the exact same situation as in, on an E2 treaty investor visa. I applied and got accepted for PUA answering I am “Able and available for work”. Although I’m not technically sure I am or not! I am legally only to work for my business, however my business is based on the film industry and can work for any film employer / production company. And I own the company 100%.

    • IanScott says:

      If you are an E-2 investor, you likely cannot get Unemployment insurance. You will have to check with the local office but the answer is likely no.

  • Wadzanai says:

    I’m a J1 on an exchange program for this year. Started December 2019. Am I entitled for the stimulus check and unemployment benefits as I pay taxes and have been affected by the covid 19. Not sure when I will resume my training

  • John says:

    What about claiming partial unemployment on an E-2 if you’re still working at the company but had reduced hours/pay?

  • Jin says:

    i’m a o1 visa holder live in LA, Can I file for Unemployment Insurance? I have been unemployed since May 2019.
    Theres no audition/casting now so

  • HS says:

    Hi

    I have O-1 visa sponsored by my company. I got furloughed for 3 month. Do you think I am eligible for employment benefit? I live in NY.

    Thank you

  • Irene says:

    Hi,
    my husband has a J2 visa and an employment authorization document since 2018. Can he apply for unemployment benefits due to the Coronavirus? We live in California. Thanks

    • IanScott says:

      It is possible, If he has an EAD and can work anywhere he should check with State unemployment officials.

    • T.P. says:

      Hi,
      We live in California. My husband is also on J2 visa. He has a valid EAD, can work for any employer (not restricted like me – J1 visa holder can only work for the sponsoring university) and his former employer advised him to apply for Unemployment Benefit. We have submitted the online application this Monday. Fingers crossed! I will keep people updated here.

      • IanScott says:

        Thank you for contacting us. We appreciate your business and look forward to helping you. Please find attached a link that you can use to set up a 30 minute ($150) or 1 hour ($250) consultation. The system allows you to select a lawyer and a day and time that is convenient to you. If you end up hiring the firm and your bill is greater than $2,500, we will apply this consultation fee to your final bill. Please reach out if you have any questions.

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  • James says:

    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?

  • James says:

    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?

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