Just got laid off last Friday. Talked to my attorney yesterday. Asked him whether I could collect umemployment benefit and he said YES. Double confirmed with him whether that would affect/damage my GC application and he said NO. But I just read the post below from www.immigration-law.com and start being not so sure about what my attorney said. Please share your thoughts especially if you have similar experience. Thanks in advance.
Updated 08/30/2002: Minnesota Court Ruled Laid-off H-1B Ineligible for Unemployment Benefit
• The Minnesota State Court of Appeals has ruled that when a nonimmigrant alien is admitted to the United States as a temporary worker for a specific employer and the employer terminates the alien’s job, under United States Immigration and Naturalization Service rules the alien is “out of status” and is no longer eligible to work in the United States. Because the alien is ineligible to work in the United States, he is also ineligible to receive unemployment benefits under the plain language of Minn. Stat. § 268.085, subd. 12(a) (2000). Read on. (Courtesy of Robert Weber, Esq.)
• The same rule may apply to other employment-based nonimmigrants, such as L-visa, TN-visa Canadians, O-visa, P-visa, H-2B, H-2A, etc. etc. in that the status is tied to continued employment by a specific employer.
• Regardless of the eligibility of the unemployment benefits under the law, this web site warned that the laid-off H-1B should not visit the State unemployment benefits office to claim the unemployment benefits as the state offices can contact the INS offices. This Minnesota court decision not only confirm that the unemployed H-1B is not only ineligible for such benefits under the law, but also reminded the community that such aliens are "illegal!"
• This raises a question on whether those former H-1B aliens who started working on EAD after filing EB-485 adjustment of status would face a similar consequence. It appears on the surface, though, that such alien is not required to maintain any nonimmigrant status and the alien remains in status "pending" adjudication of EB-485 application. At least theoretically, such alien's "status" is not contingent upon continuing employment with any given employer and unlike an alien working on an employment-based visa status, such alien who has been working on EAD may have a valid unemployment compensation claim, applying the analogy of the Minnesota Court of Appeals' decision. However, people should recognize the distinction between the consequences of unemployment on unemployment benefit claims and the consequences of unemployment on the immigration. Unemployment during the first 180 days and claim of unemployment compensation benefits can bring a serious immigration consequences because the alien is required to prove the "continuing existence" of petitioned job with a specific employer who filed the labor certification application and/or I-140 petition and notice of layoff to the INS through the State unemployment office during the 180-day period may be taken by the INS as an evidence that the petitioned I-140 job no longer exists. Therefore, even if theoretically the alien may be entitled to a claim of unemployment benefits, "practically" such benefits may not be claimed by the alien because of the potential consequences on the pending EB-485 proceedings. Theory and reality are two different things!
Updated 08/30/2002: Minnesota Court Ruled Laid-off H-1B Ineligible for Unemployment Benefit
• The Minnesota State Court of Appeals has ruled that when a nonimmigrant alien is admitted to the United States as a temporary worker for a specific employer and the employer terminates the alien’s job, under United States Immigration and Naturalization Service rules the alien is “out of status” and is no longer eligible to work in the United States. Because the alien is ineligible to work in the United States, he is also ineligible to receive unemployment benefits under the plain language of Minn. Stat. § 268.085, subd. 12(a) (2000). Read on. (Courtesy of Robert Weber, Esq.)
• The same rule may apply to other employment-based nonimmigrants, such as L-visa, TN-visa Canadians, O-visa, P-visa, H-2B, H-2A, etc. etc. in that the status is tied to continued employment by a specific employer.
• Regardless of the eligibility of the unemployment benefits under the law, this web site warned that the laid-off H-1B should not visit the State unemployment benefits office to claim the unemployment benefits as the state offices can contact the INS offices. This Minnesota court decision not only confirm that the unemployed H-1B is not only ineligible for such benefits under the law, but also reminded the community that such aliens are "illegal!"
• This raises a question on whether those former H-1B aliens who started working on EAD after filing EB-485 adjustment of status would face a similar consequence. It appears on the surface, though, that such alien is not required to maintain any nonimmigrant status and the alien remains in status "pending" adjudication of EB-485 application. At least theoretically, such alien's "status" is not contingent upon continuing employment with any given employer and unlike an alien working on an employment-based visa status, such alien who has been working on EAD may have a valid unemployment compensation claim, applying the analogy of the Minnesota Court of Appeals' decision. However, people should recognize the distinction between the consequences of unemployment on unemployment benefit claims and the consequences of unemployment on the immigration. Unemployment during the first 180 days and claim of unemployment compensation benefits can bring a serious immigration consequences because the alien is required to prove the "continuing existence" of petitioned job with a specific employer who filed the labor certification application and/or I-140 petition and notice of layoff to the INS through the State unemployment office during the 180-day period may be taken by the INS as an evidence that the petitioned I-140 job no longer exists. Therefore, even if theoretically the alien may be entitled to a claim of unemployment benefits, "practically" such benefits may not be claimed by the alien because of the potential consequences on the pending EB-485 proceedings. Theory and reality are two different things!
