Do Illegal Aliens Get Unemployment

Date: Friday, November 22, 2002 2:20 PM

H-1B and JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

I received the following comment after my newsletter that Arizona pays
unemployment to aliens:

I can't see where his concern is. I don't know the rules for
making a claim but if the alien has paid into it there should
be no reason why not. Alien registration takes many forms,
green card being the most common. I wouldn't doubt that most
Prucol aliens are eligible for a broad range of benefits. If the
alien is unlawfully present there used to be a DOL regulation
prohibiting it.

Another comment:

On aliens and unemployment. You have to distinguish between legal and
illegal aliens.

When I sent that newsletter out I was more concerned that H-1Bs and other
so-called nonimmigrants were getting unemployment benefits. Since by law
they should be deported when the lose their jobs they shouldn't be eligible
for unemployment benefits. Those that file for unemployment can't get
payments unless they can prove they are looking for a job. H-1Bs, L-1s, etc.
cannot look for a job once they are deported so they have no right to
unemployment. I haven't seen studies on how many nonimmigrants are
collecting unemployment but you can bet it happens.

Here are a few excerpts concerning H visas and unemployment:
http://www.mintz.com/newspubs/Immigration/ImmAdv0102.pdf
In Massachusetts, H-1B workers are not eligible for unemployment benefits
because in Massachusetts only non-citizens who are currently and immediately
eligible to begin a new job may qualify for benefits. Since an H-1B worker
must be sponsored by a
new employer in order to work in the U.S., such a worker is not immediately
eligible for unemployment benefits.

The personal experience of Doron Tal is a classic example of how H-1Bs are
denied unemployment:
http://www.geocities.com/CapitolHill/9302/Actions/USA/embassy.htm
On November 24, 1991, I claimed for Unemployment Benefits to be paid by the
New Jersey State. Initially, my claim was rejected solely on the ground of
my alien status. I appealed. The decision was then remanded in part in favor
of the employer, because this employer deposited false testimony. Yet, my
claim for Unemployment Benefits is still pending 10.

H-2A and H-2B visas are not supposed to get unemployment benefits either:
http://www.cnie.org/NLE/CRSreports/Agriculture/ag-102.cfm
H-2A workers, however, are exempt from the Migrant and Seasonal Agricultural
Worker Protection Act that governs agricultural labor standards and working
conditions as well as from unemployment benefits (Federal Unemployment Tax
Act) and Social Security coverage (Federal Insurance Contributions Act).
Farm workers in general lack coverage under the National Labor Relations Act
provisions that ensure the right to collective bargaining.

Illegal aliens are a different issue. They manage to get unemployment
payments by fraud because our government can't track who is a legal alien,
and who is illegal. In many cases the courts mandate that they should be
paid.

Here is an OIG study that proves my point:
http://www.oig.dol.gov/public/reports/oa/1998/04-98-001-03-315s.htm
Some 2,927 claims totaling $3,206,675 were paid individuals who had filed
for UI benefits under SSNs that had either not been issued or were issued to
deceased individuals. Our testing showed a substantial portion of these
claims were filed by illegal aliens.

Besides the fraud discussed above, the Prucol loophole gives allows illegal
aliens the right to collect unemployement all other benefits.
http://www.fairus.org/html/04107604.htm
HOW IS PRUCOL DETERMINED?
This designation, created by federal agencies in conjunction with the
courts, applies to four federal programs to determine whether an illegal
alien is eligible for benefits:
(1) Aid to Families with Dependent Children (AFDC);
(2) Supplemental Security Income (SSI);
(3) Medicaid, and
(4) Unemployment Insurance benefits.

Using Rhode Island as an example, they have a big Prucol loophole written
right into their law:
http://www.rilin.state.ri.us/Statutes/Title28/28-44/28-44-67.HTM

§ 28-44-67 Denial of unemployment compensation to illegal aliens. – (a)

Benefits are not payable on the basis of services performed by an alien
unless the alien is an individual who was lawfully admitted for permanent
residence at the time the services were performed, was lawfully present for
purposes of performing the services,
or was permanently residing in the United States under color of law
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
at the time the services were performed, including an alien who was lawfully
present in the United States as a result of the application of the
provisions of 8 U.S.C. § 1182(d)(5).

Sometimes courts order unemployment to be paid to illegal aliens:
http://www.lerlaw.com/jul2002.htm
A number of other jurisdictions have considered the applicability of the
IRCA, mostly in the context of workers’ compensation or unemployment benefit
claims, and all prior to the Hoffman decision. Some courts have held in
favor of providing benefits, largely based upon specific statutory language.

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