During these uncertain times, many people are facing economic hardship due to layoffs or furloughs. A question I have been getting lately is if a person can apply for unemployment benefits if a person does not have any legal status; if a person is not a green card holder but holds a valid work permit; if a person is a green card holder; or if a person is an H-1B holder.

The general rule is that getting uemployment will not be considered a public benefit that would affect a person’s ability to get a green card. The Department of Homeland Security has explained in its final rule on inadmissibility on public charge grounds that it, “…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.” Also, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that unemployment benefits are not considered by USCIS in a public charge inadmissibility determination because unemployment insurance is considered by USCIS as an “earned” benefit.

In scenarios where a person does not have any legal status and does not have a valid work permit, then the person generally would not be eligible to get unemployment. Also, those who hold H-1B status and are laid off would not be eligible to get unemployment because, in order to get unemployment, the person would have to show they are authorized to work in the U.S. with another employer after being laid off. In cases of H-1B holders, they are only authorized to work for the employer who petitioned for them, and wouldn’t be able to use the same H-1B and automatically begin working for another employer without that new employer filing a new H-1B petition.

For those who are not green card holders but have a valid work permit (i.e. U, S, and T Visa holders; DACA recipients; those who have a work permit based on a pending green card application; and refugees/asylees) they could be eligible for unemployment. The person would have to show that they were authorized to work in the U.S. on the date of the layoff and she remains eligible to work in the U.S. after the layoff. Green card holders are eligible for unemployment benefits.

As always you will want to check with your local state agency about the eligibility requirements to get unemployment benefits.