The Federal Unemployment Tax Act (FUTA) requires that states’ laws provide that compensation shall not be payable on the basis of services performed by a non-citizen unless such non-citizen is an individual who (1) was lawfully admitted for permanent residence at the time such services were performed, or (2) was lawfully present for purposes of performing such services, or (3) was permanently residing in the United States under color of law (PRUCOL) at the time such services were performed (including a non-citizen who was lawfully present in the United States as a result of the application of the provisions of § 212(d)(5) of the Immigration and Nationality Act). 26 U.S.C. § 3304(a)(14)(A)). These requirements are incorporated in Massachusetts UI law at G.L. c. 151A, § 25(h). The receipt of UI benefits does not pose a problem or potential public-charge issue for an immigrant who later applies for permanent status or citizenship.
For a full description of DUA's policy with respect to non-citizen eligibility, see AH c. 10, § 1.
In addition to proving their satisfactory immigration status (by meeting one of the three tests listed above) for purposes of determining financial eligibility during the base period, non-citizens must also prove that they are available for work during their benefit year while collecting UI benefits under G.L. c. 151A, § 24(b). DUA determines non-citizens’ availability for work using the Employment Eligibility Verification, or the Form I-9, process required of employers, available at https://www.uscis.gov/sites/default/files/document/forms/i-9-paper-version.pdf. The request for more documents than are required by law or the refusal to honor facially genuine documents is an unfair immigration-related employment practice. Immigration Act of 1990, 8 U.S.C. § 1324b(a)(6). U.S. Department of Justice, Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Unfair documentary practices related to verifying the employment eligibility of employees, available at www.justice,gov/ert/about/osc/. Accordingly, where a review examiner denied UI benefits to a claimant who had provided DUA with an expired permanent resident card, a social security card and a current Massachusetts driver's license, the Board reversed the denial because the claimant's social security card and driver's license were sufficient. BR - 0019 4545 15 (12/2/16) (Key)
The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) finalized a rule, effective May 16, 2011, altering the list of acceptable identity documents for the I-9 employment eligibility verification process. The rule amends 8 CFR 274a.12. The 2011 rule, which finalized without change a 2008 interim final rule, requires only unexpired documents to be presented during the verification process, with certain exceptions. The rule also eliminates from the list of acceptable documents several that USCIS no longer issues, such as forms I-688, I-688A, and I-688B, which are temporary resident cards and older versions of the employment authorization card.
An important exception to the “unexpired document” rule applies to “green card” holders, i.e., lawful permanent residents who have permanent work authorization in the US even after their green cards expire. Accordingly, the Board overturned its prior denial of UI benefits where a claimant had been fired for not providing proof that he had requested a new green card where the employer had a copy of his old expired document. BR-0024 3279 66 (8/20/19), (reversing its prior decision, same docket number, issued on 7/30/18).
The USCIS rule includes arrival/departure record Form I-94, Employment Authorization Card Form I-766, other work authorization documents and adds to the list of acceptable documents: a revised U.S. passport card; the temporary Form I-551, or permanent resident card that includes a machine-readable immigrant visa; and documentation for certain citizens for the Federated States of Micronesia and the Republic of the Marshall Islands. For a full description of what DUA accepts as documents relating to immigration status and work authorization, see AH c. 10, § 1D
The USCIS rule also preserves the “receipt rule,” which allows employees to present alternative documents under certain circumstances. 8 CFR 274a.2(b)(1)(vi). In addition, minors under the age of 18 and certain individuals with disabilities may use alternative procedures if they cannot provide a document establishing identity. 8 C.F.R. 274a.2 (b)(1)(v)(B).
As of January 17, 2017, USCIS automatically extends certain expiring employment authorization documents for up to 180 days. This extention also applied to individuals with TPS. For a list of the categories of immigration status eligible for automatic extensions, go to https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension. The notice USCIS provides to the individual includes that individual's immigration category. Note: This change may cause problems for immigrant workers in two ways: 1) It relieves USCIS from the responsibility of timely adjudicating work authorization applications within 90 days; and 2) employers may not be aware of this change.
Similarly, DUA may not impose requirements that would constitute “document abuse.” For example as outlined above, an employer who discharges a claimant for failure to acquire a new green card for continued employment after the card on file had expired, may violate federal law in committing an unfair immigration- related practice under 8 USC 1324(b).
Note 1: A person who is a U.S. citizen may not be disqualified from receiving UI even after failing to produce documentation proving their citizenship status upon an initial request or at a DUA hearing. Citizens able to produce appropriate documentation that demonstrates their citizenship status, they are to be deemed able to work within the meaning of G.L. c. 151A, § 24(b) and eligible for retroactive UI if otherwise eligible. BR - 0008 9668 79 (10/14/14).
Note 2: The same is true for non-citizens authorized to work in the United States, but who do not produce appropriate documentation that demonstrates such authorization either when their employer asks for such or when they are asked for such at a DUA hearing. Once the non-citizen produces appropriate documentation that demonstrates work authorization, the individual is considered available to work within the meaning of G.L. c. 151A, § 24(b). BR - 0011 5392 01 (7/24/14). (Here, the documentation was provided to the Board and sent back to the Review Examiner to consider at a remand hearing).
Verification of Status
Claimants who are non-citizens must have their immigration status verified through Systematic Alien Verification for Entitlements (SAVE). 42 U.S.C. § 1320b-7. DUA has access to an automated information system that includes the non-citizen’s first and last names, “A-number” (alien admission or file number), date and country of birth, date of entry into the United States, Social Security number (when available), and immigration status. Verification through this system is called “primary verification.”
If the non-citizen does not have an A-number, or if primary verification does not establish satisfactory immigration status, “secondary verification” is instituted by sending photocopies of the claimant’s documentation to the local immigration office. DUA should not deny UI benefits before DUA has received a response from USCIS on its request for secondary verification. Under both federal and Massachusetts law, a determination that UI cannot be paid to a claimant due to immigration status shall not be made except upon a preponderance of the evidence. 26 U.S.C. § 3304(a)(14)(C); G.L. c. 151A, § 25(h).
Claimants who are undergoing primary or secondary verification are to be paid benefits in the interim. If documentation is not verified following primary or secondary verification, the claimant must be allowed a reasonable period to present other evidence of satisfactory immigration status; i.e., the claimant will receive one check for 2 weeks of benefits during this period. 42 U.S.C. § 1320b-7(d)(4); Therefore, if DUA denies a non-citizen UI benefits because she could not provide documents that could be verified using SAVE, advocates may argue that claimant should be provided a reasonable opportunity to submit other evidence of satisfactory immigration status. 42 U.S.C. § 1320b-7(d)(2)(B) (allowing states to accept documents without an A-number as evidence of satisfactory immigration status). This interpretation of the federal statute is supported by the purpose of the Massachusetts UI law, which is “to lighten the burden which now falls on the unemployed worker and his family.” G.L. c. 151A, § 74. Moreover, it is the responsibility of DUA, not CIS, to determine satisfactory immigration status for purposes of UI eligibility. 42 U.S.C. §§ 1320b-7(d)(1)(B)(iii), (d)(2)(B), (d)(5).
Permanently Residing under Color of Law
If an individual has the necessary documents to demonstrate “availability for work” during the benefit year but did not have work authorization while employed, he may still be eligible for UI benefits if he met the third test of the unemployment law (“PRUCOL”) during the base period. 26 U.S.C. § 3304(a)(14)(A); G.L. c. 151A, § 25(h); AH c. 10, § 1C.4. The term “permanently residing under color of law” (PRUCOL) does not exist in immigration law but has been created under common law and is included in numerous benefit statutes, including the unemployment insurance law. The majority of court decisions construing PRUCOL—and the legislative histories of statutes that include PRUCOL—have interpreted the phrase expansively.
Claimants demonstrates they are “permanently” residing in the US simply by showing continuing presence, even if their status is subject to renewal or revocation by USCIS. While Massachusetts case law has not specifically addressed the question of PRUCOL as it relates to UI benefits, the Supreme Judicial Court has adopted the well-established definition of PRUCOL, holding that an individual is “residing under color of law” and eligible for a variety of benefits if the INS (now CIS) knows about, and thereby acquiesces in, the individual’s continued presence in the country. Cruz v. Comm'r of Pub. Welfare, 395 Mass. 107, 115, 478 N.E.2d 1262, 1266 (1985) (finding claimant PRUCOL and, therefore, eligible for Medicaid, because “INS . . . acquiesced in the [claimant’s] continued presence in this country” by failing to take action to deport claimant). AH c. 10, § 1C.4 (see types of documentation required)
The Board of Review has addressed this issue on several occasions. BR-115462 (1/14/2011) (Key) (although the claimant, a Liberian national, did not have a formal Employment Authorization Document during the base period, the automatic government extensions of her work authorization documents and her formal applications to the USCIS constituted sufficient evidence that claimant was PRUCOL and thus eligible for benefits); BR-110292 (12/6/2010) (Key) (claimant, a citizen of Cape Verde, who entered the country legally, held conditional residency status, was granted employment authorization and extensions of such authorization, was in regular contact with USCIS, and was ultimately granted lawful permanent resident status retroactively, satisfied the PRUCOL eligibility requirement of § 25(h) and was able and available for work during the benefit year under § 24(b)); BR-110292 (6/12/10) (claimant who did not have a work authorization document during his base period or his benefit year was nonetheless deemed to be work authorized where he was PRUCOL during his base period and obtained a Removal of Conditions of Residence during his benefit year (emphasis added)); AH c. 10, § 1C.4¶2Note.
A non-citizen’s work authorization may be relevant in a UI case for three distinct reasons: (1) the non-citizen must establish availability for work during the benefit year; (2) the non-citizen may be financially eligible during the base period by meeting the second test of the unemployment law, “lawfully present for purposes of performing such services” (however, as described in the description of PRUCOL above, this test is a sufficient but not necessary condition of eligibility with respect to work during the base period); or (3) the non-citizen’s separation from work may be related to the individual's work authorization.
This is a complicated area of the law, and advocates should consult an immigration expert to ensure that a claimant is not wrongly denied UI benefits. CIS’s practices often cause individuals to have expired documents that do not correspond to their actual work authorization—this is especially the case with Temporary Protected Status (TPS) and Deferred Enforcement of Departure (DED) designations and extensions. There is often a last-minute extension of TPS or DED and an automatic extension of expired Employment Authorization Documents for six months or some other time period. DUA has been known to ignore these automatic extensions at both the adjudication and the hearing levels and, as a result, to erroneously deny UI benefits. Before assuming that a client does not have the requisite work authorization, particularly a client with TPS or DED status, be sure to check the USCIS at https://www.uscis.gov/.
Where an employee’s work authorization is automatically renewed but an employer terminates him because he has not received an updated authorization card, the Board has held that a claimant is involuntarily terminated through no fault of his own. BR - 0015 5236 84 (2015); similarly, where a claimant was discharged from failing to renew his work authorization and the claimant had applied for renewal four months prior to its expiration and the way in which USCIS handled his petitions (including an immigrant visa petition and an application to adjust status) was beyond the claimant's control, the Board determined tat his leaving was for involuntary and due to urgent, compelling, and necessitous reasons. BR - 0021 8150 72 (12/22/17) (Key)
Where claimants’ UI benefits have been stopped or delayed due to their immigration status, even though the claimants have current work authorization, please contact Greater Boston Legal Services at 167-371-1234 for assistance.