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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