E-2 visa and unemployment benefits eligibility

Many of our clients have employees with E-visa working here in the US. Due to the coronavirus outbreak, some of these employees may have been laid off. Their question may be:

• “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?”

First one needs to know that every state has its own requirements that will need to be met to qualify for unemployment benefits. But, the general rule is that a person applying for unemployment benefits must be “able and available” to work at the time claiming the unemployment benefits. This means the applicant is required to be legally authorized to work in the U.S. at the time of applying for the unemployment benefits. Since the employee is currently in the U.S. on an E-2 employee visa, they are only authorized to work for the specific E-2 company, and they are not permitted to work for any other employer. 

Therefore, an E-visa employee would not be able to prove that they are available to work in the U.S. and are not allowed to accept any employment in the U.S. Therefore, if they become unemployed, they could not collect unemployment benefits.

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

If a spouse of an E-visa employee (always required to have an own EAD) becomes unemployed due to the Coronavirus outbreak, he/she could potentially apply for unemployment benefits as the work authorization allows your spouse to accept employment with any company in the U.S.

Therefore, the spouse may be able to apply for unemployment benefits, as the spouse’s work authorization does not require that they work for a specific company. So the spouse is able to proof their availability to work in the U.S. The spouse’s employment authorization should not be expired. If needed, re-apply for this at least 90 days prior to the expiration of the EAD. However, there are many different state-specific requirements that will have to meet to be able to get unemployment benefits.

Please make sure to review these in detail before applying for unemployment benefits. The above discussed requirement is just one of several requirements.

Reinhard von Hennigs, Attorney (NC)