Can Undocumented Immigrants Get Unemployment Benefits?
If you are an undocumented immigrant and you lose your job, you may wonder if you qualify for unemployment benefits. The answer depends on your legal status during the base period and the benefits period.
Most states have state unemployment insurance funds. These funds can pay unemployment benefits for a set number of weeks, called the “benefits period.”
Legal Issues
In a national economy that needs people to work, it is irresponsible and regressive to exclude undocumented immigrants from traditional unemployment insurance programs. As a result, they are often forced to choose between paying taxes on their own behalf or not having any income.
The legal status of these excluded workers should be a key consideration when designing a long-term program solution. Many states are actively debating a number of proposals for creating annual state-level funds to provide unemployment compensation to immigrants who lack work authorization and other excluded workers.
A key feature of these programs should be strong privacy and anti-retaliation protections so that they do not allow employers to use anonymous data to identify and retaliate against newly-claimed excluded workers. Another important feature is that these programs should require applicants to report past earnings, residency and identity.
These requirements are vital for ensuring that excluded workers have a path to full employment, as well as to ensure they do not lose the income they earned during their last job. This can be done in many ways, such as by requiring applications to include time cards or other documents that document earnings and other details about employment.
This can make it easier for applicants to submit their application, especially if they have photos or scans of these documents. In addition, applicants should be allowed to use methods that they feel comfortable with in order to prove their earnings and other information.
For example, a worker could submit their paycheck to the program, which would then process it in accordance with state law and issue a payment on a prepaid debit card. This is a much better option than receiving payments in the mail or by check, which may be difficult to collect from an employer.
In addition, if an excluded worker’s wages increase as a result of their participation in the program, they will likely also become more productive and contribute more to society as a whole. For example, they might complete additional education and training and improve their health outcomes. In addition, they might pay more tax to support their families and their communities.
Loss of Status
Unemployment is a traumatic experience for anyone, but it can be especially hard for immigrants without work authorization. When undocumented immigrants lose their jobs, they often face a loss of income and a desperation for food and shelter. In addition, if their employers report them to Immigration and Customs Enforcement (ICE), they can be subject to deportation.
Immigrants without work authorization can be eligible for unemployment benefits in certain situations, depending on the type of visa and their status at the time of their unemployment. For instance, if you have an H-1B visa and you are working for a company that is sponsoring your visa, you may not qualify for unemployment benefits unless you find another job before the end of your visa.
In other cases, you can apply for unemployment benefits even if you are in a non-sponsoring visa. If you are in H-1B status, your employer will still be responsible for paying your unemployment benefits until you re-enter the U.S. on a different H-1B visa or other type of employment authorization.
The good news is that many states are considering alternatives to traditional unemployment insurance for immigrants without work authorization. Colorado is leading the way with a first-in-the-nation program that covers immigrants who would qualify for unemployment insurance but for their lack of work authorization.
However, these programs are costly to administer and have a relatively low benefit per worker. They also require a significant amount of new data collection, which could be more expensive than traditional UI systems that rely on wage records submitted prior to the start of unemployment.
In addition, some undocumented immigrants may not be able to prove their identity and earnings in the ways that are required for eligibility under this model, as many do not have ITINs or other documentation of employment and earnings. This means that undocumented workers who have a short work history or who are part-time, independent contractors, sole proprietors, and gig workers will not be able to use this approach. For this reason, it is critical that excluded worker programs offer options for proving past earnings and residency, as well.
Employer Discrimination
In the United States, employers must comply with federal employment laws, including those that protect workers from discrimination on the basis of their national origin or citizenship status. These anti-discrimination laws include the Immigration and Nationality Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Occupational Safety and Health Administration law, and the Equal Pay Act.
There are also many state laws that protect workers from discrimination and harassment on the basis of their ethnicity, race, religion, age, gender, or disability. If you believe you have been discriminated against in the workplace, contact an attorney who is familiar with employment and immigration law.
For example, a worker who has been fired from a restaurant may be able to recover back wages under the Fair Labor Standards Act and/or the NLRA. Under these laws, undocumented workers may be able to recover back pay for the time they actually worked, rather than the amount of time they were discharged for.
Another protection for undocumented workers is the right to refuse unsafe work. Under the California Occupational Safety and Health Act, employers must provide employees with information about their health and safety rights at work and are required to take reasonable measures to prevent workplace hazards.
However, many undocumented workers do not know that their rights are protected under federal and state law. They are often unaware that they have the legal right to file a complaint against their employer.
If you are an undocumented worker who believes you have been subjected to discrimination, harassment or wage theft in the workplace, you should seek help from a lawyer with expertise in employment law and immigration law. An experienced attorney can review your case, explain your options, and advise you on whether to pursue a claim.
Depending on your immigration status, you may be entitled to a deferred action for childhood arrivals program (DACA). This means that you will not be deported and can continue to live and work in the U.S.
In addition to these protections, you are also entitled to file a complaint with the EEOC if you believe you have been the victim of discrimination or illegal wage theft. This will require the EEOC to review your case. If you believe you have been the victim of employer discrimination, you should contact a lawyer for a free, confidential consultation.
Independent Contractors
An independent contractor is a person or company that provides services to another entity as a non-employee. Unlike employees, contractors do not receive benefits and pay their own Social Security and Medicare taxes. However, they may be eligible for certain deductions that allow them to reduce their tax bills.
Independent contractors can be found in a variety of industries and roles, including personal services, construction, retail, social assistance, and building services. These workers are a large part of New York’s economy, but they are largely unrecognized and do not receive much attention in the press or legislative arenas.
If you’re an employer looking to hire independent contractors, make sure to use a lawyer who is familiar with the laws in your state. This will help ensure that the workers you hire are correctly classified and can benefit from protections such as overtime compensation.
Moreover, make sure that the workers you hire have all of the required paperwork and authorization to work in the United States. This will protect you from being charged additional taxes or fines if you hire an undocumented immigrant.
In addition to the worker’s legal status, it is also important to determine whether they have a contract for the work. If they do, the contract should clearly define their responsibilities and terms of payment.
The contract should also specify how long the work will be performed and who will be responsible for paying the workers. It should include any copyright rights that the workers have in their work.
When hiring contractors, it’s important to ask about their work habits and experience. This can give you an idea of how likely they are to be available to do the work when you need it, and whether they have the expertise and skills that you require.
You should also consider the length of their work history and if they have been out of work for any reason. If they have a short work history or only part-time work, they may not be eligible for unemployment insurance (UI) in their state.
In addition, the City should conduct a comprehensive outreach campaign to ensure that all independent contractors know about their rights under the Freelance Isn’t Free Act and Local Law 172. This campaign should focus on day laborers and undocumented immigrants, who are more vulnerable to exploitation in the gig economy than other sectors.