Miscellaneous MI 50
Determinations on Alien Claims
This section discusses eligibility factors that are peculiar to an alien, statutorily defined in the Immigration and Nationality Act as "any person not a citizen or national of the United States." Alien claims must be examined to determine status during the base period of the claim, as well as the current status while benefits are being claimed. Both periods of time are discussed in this chapter.
Those Immigration and Naturalization Service (INS) forms that are typical of the INS forms the field office could possibly see are presented in section D. This list is not meant to be all-inclusive.
Source materials for the historical and more technical aspects of this chapter and for further reading, are: Immigration Law and Procedure, Nutshell Series, 1989, West Publishing Company, St. Paul, Minnesota (438 pages); Handbook for Employers (M-274), United States Department of Justice, various dates as amended (approx. 18 pages); and Systematic Alien Verification for Entitlements (SAVE, M-300), a handbook issued by the United States Department of Justice, Immigration and Naturalization Service (approx. 300 pages).
A. Historical Basis for U.S. Immigration Policies
U. S. immigration policy began originally in 1639, when the colonies acted to restrict immigration of felons and paupers sent by English courts. Each state operated independently in matters of immigration until 1875, when the U. S. Supreme Court held that the United States, rather than the individual states, controlled the power to limit immigration.
The Immigration and Nationality Act of 1952 (as amended), under which the United States presently operates, consolidated all prior laws into one coordinated statute. The most significant legislation enacted in the recent past to amend the 1952 Act was the Immigration Reform and Control Act of 1986, discussed below.
"Citizen," Defined: To understand base period and present status determinations, it is first necessary to examine exactly who and what we are talking about. Since "alien" is defined in terms of a person who is not a citizen, this section focuses primarily on what a "citizen" is.
In United States v. Cruickshank, an 1875 U.S. Supreme Court case, the court stated:
"Citizens are members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual well as collective rights."
Citizenship is acquired either by birth in the United States, by birth in U.S. territories, by birth outside the U.S. to U.S. parents, or by naturalization. There is no universal "nationality rule;" some nations embrace "citizenship by place of birth," while others endorse the principle of citizenship by descent or blood relationship. The United States has adopted a combination of both principles. Citizenship at birth in the United States is conferred automatically, and children born to United States citizen parents while out of the country will be considered natural-born citizens if the parents had resided in the United States at one time.
Dual Citizenship: When two different rules for conferring citizenship exist at the same time, the child may be born with dual citizenship: citizenship under the U.S. law which grants U.S. citizenship, and also under the foreign state’s law. To correct this dilemma, many nations require a child to elect a single nationality when reaching age 18. There are special rules and dates in connection with electing citizenship, which are not described here because they are beyond the scope of this material. In general, dual citizenship is frowned upon.
Congress has provided that a U.S. citizen will lose his or her nationality by voluntarily obtaining naturalization in a foreign state upon his or her own application, after having reached the age of majority.
Exceptions to the Citizenship Rule: The Fourteenth Amendment to the United States Constitution, adopted in 1868, provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United "States and of the State wherein they reside.
Adoption of the Fourteenth Amendment eliminated any doubt that persons born in the U.S. of alien parents are U.S. citizens. But the phrase, "subject to the jurisdiction thereof," provides an exception for children such as those, for instance, born to parents in the French foreign diplomatic service in the United States.
A second exception concerns American Indians. The U.S. Supreme Court found in Elk v. Wilkins, an 1884 case, that John Elk did not have U.S. citizenship because he was subject to the jurisdiction of his tribe rather than to the U.S. Although he attempted to renounce his tribal allegiance, the court found that his renunciation was "irrelevant." In 1924, however, Congress passed a Citizenship Act, authorizing the Secretary of the Interior to issue certificates of citizenship to Indians. In 1940, Congress passed the Nationality Act of 1940, which provided:
"The following shall be nationals and citizens of the United States at birth:
(b) A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, provided, that the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property."
A third exception to the "citizenship by place of birth" rule applies to children born in foreign public ships while those ships are in United States waters; but persons born in private vessels in U.S. waters do acquire U.S. citizenship.
The fourth exception applies to children born to alien enemies who occupy U.S. territory in hostility; they do not gain citizenship upon their birth.
Citizenship Through Naturalization: Naturalization is the granting of U.S. citizenship to a person who did not acquire citizenship at birth, by means of a judicial or administrative process. Requirements include: five years’ residence and physical presence; attainment of age 18; ability to speak, understand, read and write simple English (unless exempted by age); knowledge and understanding of the fundamentals of the history, principles, and form of government of the U.S.; good moral character; attachment to Constitutional principles (belief in representative democracy, commitment to the ideals expressed in the Bill of Rights, and acceptance of the idea of orderly change); and an oath of allegiance to the U.S.
Loss of Citizenship: Citizenship may be lost by denaturalization and expatriation.
Denaturalization results from a court decision that the naturalization should not have been granted in the first place because it was illegally or fraudulently obtained; expatriation results when the citizen voluntarily relinquishes his or her citizenship.
Alien has a meaning opposite to citizen and signifies a condition of not belonging to the nation; the allegiance required of aliens is temporary and consists of willingness to comply with the nation’s laws while residing in its territory.
B. Base Period Status Determinations
1. Statutory Basis for Section 1264
Unemployment Insurance Code Section 1264 mirrors language of a subsection of the Federal Unemployment Tax Act, or FUTA, enacted originally in 1954 as an amendment to the Social Security Act of 1935. FUTA provides that certain requirements must be present in state law before the Secretary of Labor may approve that law for a state’s use (if state law does not meet federal requirements, the law may be said to be "out of conformity," and could result in denial of federal payments to the states for unemployment insurance benefits.) Section 1264 provides for alien base period eligibility as required by FUTA, as follows:
"(a) Unemployment compensation benefits, extended duration benefits, and federal-state extended benefits shall not be payable on the basis of services performed by an alien unless the alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for the purposes of performing the services. or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7J (conditional entrants, refugees, and asylees: now a reference to Sections 207 and 208 of the Immigration and Nationality Act, or INA) or Section 212(d)(5) (parolees) of the Immigration and Nationality Act."
Subsections (b) and (c) of Section 1264, also required by federal law, are discussed in B.5 and B.6 below.
Section 1264 addresses the base period of the claim only. It does not address present eligibility. An alien may claim benefits only on wages that were earned while he or she was in one of the three statuses shown above:
- Lawfully admitted for permanent residence;
- Lawfully present for the purposes of working; or
- Permanently residing in the United States under color of law, commonly referred to as PRUCOL. PRUCOL is applicable only to base period status determinations and not to present-status determinations.
2. Lawfully Admitted for Permanent Residence
"Lawfully admitted for permanent residence" means that the claimant has been examined and admitted to the United States by the INS. Examination of an alien’s status to determine admissibility may occur either in the alien’s country of origin (the country from which the alien started the admissions process, whether or not it is the alien’s country of birth), or in the United States.
Examination in country of origin: An alien is typically expected to: 1) apply for admission to the United States through an American consulate, which is part of the Department of State, in his or her country of origin; 2) wait for consular officers to make a decision on admissibility and issue a visa; 3) submit the visa for inspection to an immigration officer, who is part of the Department of Justice, at the point of entry; and 4) then enter the country. At that point, the immigration officer retains the visa and the alien is issued a "green card." Aliens who apply in their countries of origin do not generally pose a problem for UI purposes, since they have entered the country legally and have possessed work authorization since their entry. Their base period wages, therefore, have all been earned after they were legally admitted to the United States. Older Alien Registration Receipt Cards, Forms I-151 or "green cards," issued until July 1, 1979, are still valid. Between January 1, 1977, and July 1, 1979, however, both I-151s and a revised I-I51, renumbered as an I-551, were issued. As of 1979, only form numbers I-551 have been issued.
The Immigration Reform and Control Act of 1986, or IRCA, also created a class of persons who obtained residency on a temporary basis, pending conversion of their status to permanent residency at a later date. Temporary residents will principally have an Employment Authorization Card (I-688A), Temporary Resident Card (I-688), Interim Employment Authorization Document (I-688B), or Arrival Departure Record (I-94). The INS may issue other documents; this list is, therefore, not exclusive. Facsimiles of these forms are in Section D. of this chapter.
Under the INS’s "family fairness" policy, spouses and eligible children of aliens legalized under IRCA may apply for Extended Voluntary Departure (EVD). This status is derivative from the legalized alien’s status and allows formerly illegal family members to acquire permanent residency after a period of time. The "family fairness" alien will have an I-94, but must update his or her EVD status annually. See also, C.5.b., below.
The group that poses the problem for UI purposes is that group that entered the country, either legally or illegally, and now wants to apply for a change of status leading to permanent residency.
Application for adjustment of status, original entry legal: An alien may enter the United States on a (legal) nonimmigrant visa and, later, adjust his or her status to that of immigrant. If the alien’s visa expires and he or she does not adjust his or her status, the alien becomes "illegal" because the alien is supposed to return to the country of origin when the nonimmigrant visa expires.
Procedures for adjustment of status are identical to those for aliens entering from outside the United States, except that the INS has a "one-step visa processing" procedure which results in immediate processing of the visa petition. There are restrictions imposed on such changes; for UI purposes, the major restriction to adjustment of status is that an immigrant visa must be immediately available at the time of application. In some cases, there are waiting lists for visas; in that case, the alien who has overstayed the departure date shown on the visa is illegal for UI purposes. (Other restrictions will not be discussed here as they are beyond the scope of UI consideration.) The form for application for change of status is an I-485, and conveys no status for the base period wages. Only "D" visa holders (crew members) may not adjust their status (see below for a discussion of the "D" visa holder).
Application for adjustment of status, original entry illegal: The Immigration Reform and Control Act of 1986, or IRCA, was effective November 6, 1986. Among other considerations, it provided for legalization of certain aliens. Although popularly referred to as an "amnesty," IRCA does not technically confer amnesty because not all illegal aliens were permitted to legalize their status under IRCA. Certain conditions must have been met prior to legalization, or the granting of a temporary residency status that may lead eventually to a permanent residency status. For UI purposes, temporary residency and permanent residency are treated alike; but an alien legalized under IRCA is given credit for wages from the date of passage of the Act on November 6, 1986, and no earlier, unless he or she had a previously legal status. A previously legal status is possible since not all IRCA-legalized aliens were illegal from entry; IRCA served as a short cut to legalization for those who wished to adjust their status, for instance. INS instructed applicants for immigrant status to apply under all Programs for which they qualified.
In P-B-460, the claimant entered the United States in 1972 without documentation (i.e., illegally). In May of 1987, he applied for temporary residence under IRCA’s legalization program and filed a claim for benefits, with a base period incorporating the calendar year 1986. The last employer questioned the claimant’s eligibility under Unemployment Insurance Code Section 1264, and the Department issued a disqualification for all wages earned before the claimant received authorization to work from the INS on July 7, 1987. The claimant appealed, contending that his legalization made his prelegalization wage credits valid for UI purposes. The Department and public interest law groups responded with several alternative arguments, and the Board was called upon to decide whether the claimant was either "lawfully present for the purposes of working" or "permanently residing under color of law" during the base period. The alternatives the Board considered were:
(1) (T)he date his status was changed by INS,
(2) (T)he date he applied for legalization,
(3) March 23, 1987, the date that a stipulation was entered into with Catholic Social Services covering a class of aliens which would include the claimant,
(4) November 6, 1986, which is the effective date of IRCA,
(5) (T)he date that IRCA requires that an alien must have entered the United States in order to be eligible to apply for legalization, which is January 1, 1982,
(6) (T)he date the claimant entered the United States in 1972, or
(7) (S)ome other date.
After discussing each alternative, the Board held:
"(W)e believe that the claimant is entitled to use wages earned after November 5, 1986, to establish a valid claim. As of November 6, 1986, the effective date of IRCA, the claimant was eligible to change his status had INS been able to implement IRCA. Also, the claimant’s employer was not subject to prosecution for employing the claimant as of that date. Further, the claimant was work-authorized as of that date had he been apprehended by INS.... Accordingly, the matter must be remanded to the Department for computation of the amount of wages earned for the period from November 6 through December 31, 1986, and to determine whether those wages are sufficient to meet the requirements of section 1281 of the code."
After 18 months of temporary residency, the alien is permitted to apply for adjustment of status to permanent residence status. If the alien has not applied within certain time frames and qualified, based on certain criteria, the alien’s status reverts to illegal. A separate, but comparable, program was instituted for Special Agricultural Workers (SAWs.)
IRCA also established other immigration procedures for admission of aliens which did not involve legalization of status, and under which certain targeted groups were allowed to come to the United States under an increased quota.
3. Lawfully Present for the Purposes of Performing the Services
While an immigrant is also "lawfully present for the purposes of performing the services," this category is used to refer to those aliens who are nonimmigrants but who have been admitted to the United States to work. "Lawfully present" means that they, like the immigrants, have been inspected and admitted by the INS. Nonimmigrant visas form the largest number of visas issued; in 1986, INS admitted 601,178 immigrants and 10,471,024 nonimmigrants. Of those ten million, over seven million visas were tourist visas. There are fifteen main categories of nonimmigrant visas described below, but the majority will never contact our offices. The total list of visa classifications is included here for the sake of completeness, and is subject to change as INS procedures change.
NOTE: Only those noted as work authorized are "lawfully present for the purposes of performing the services."
NOTE: In most cases, the visas indicated below are not employment authorized, and will require the use of secondary verification procedures. No determination should be made on the basis of information included here, as the final decision on employability is retained by the INS.
The "A" Visas - diplomatic Personnel: A-1 visas are issued to ambassadors, public ministers, career diplomatic or consular officers, and members of their immediate families. A-2 visas are issued to other foreign government employees and officials and their family members. A-3 visas are used for personal employees, attendants, and servants of persons holding A-1 and A-2 visas. A-1 and A-2 visas are valid as long as the Secretary of State extends recognition to the holder, and the holder may accept employment if permission is applied for and granted. A-3 visas are valid for not more than 3 years but can be extended in 2-year increments.
The "B" Visas - Temporary Visitors: B-1 visas are issued to visitors here on business and B-2 visas are issued to visitors for pleasure (such as prospective students here to select a school, visitors for medical treatment, and tourists.) Visitors may, however, be issued a multi-purpose B-1/B-2 visa. The visas are valid for one year and holders may not accept employment.
The "C" Visas - Visitors in Transit: A C-1 visa is issued to a person in continuous travel through the United States that requires a layover of not more than 8 hours and no more than two transfers of transportation. C-2 visas are for persons with a "right of transit" to the United Nations; the C-3 visa includes foreign government officials in transit. C-2 and C-3 visas are valid for 29 days only, are nonrenewable, may not be adjusted to any other nonimmigrant classification, and no employment is permitted.
The "D" Visas - Crew Members: D-1 visas are issued to crew members remaining with their vessels; D-2 visas are issued to crew members who are discharged from their vessel and intend to work on another vessel. Both visas are valid for a maximum of 29 days, are nonrenewable, and cannot be adjusted to any other visa class. Employment is restricted as noted.
The "E" Visas - Treaty Traders and Investors: E-1 visas are for treaty traders and their spouses and children; E-2 visas are for treaty investors and their spouses and children. These aliens enter the United States as the result of a treaty of commerce existing between their country and the United States. Treaty traders are admitted to engage in substantial trade in goods or services (both in volume and in monetary value), and treaty investors are admitted to develop an enterprise involving substantial amounts of capital (more than half the value or cost of the enterprise). employment is authorized to the extent consistent with the Purposes for which they were admitted. The visas are valid for one year and are renewable.
The "F" Visas - Academic Students: F-1 visas are issued to aliens entering the United States temporarily to pursue a full-time course of study at an established academic high school, college, university, seminary, conservatory, or language school. F-2 visas are issued to the spouse and children of F-1 visa holders. The visas are normally granted for the duration of student status or for the time necessary to complete the course of study, but the alien must apply for an extension of stay to continue study past 8 years.
F-1 students may accept employment according to the terms of a scholarship, fellowship, or assistantship, and may also engage in other on-campus employment that will not displace a United States resident.
To work off-campus, the student must obtain INS’s permission. Permission will not be granted unless 1) the student has been studying in the United States at least one year; 2) he or she is carrying a full course load and is in good standing; 3) he or she has an unforeseen economic necessity, arising after the F-1 status was granted; 4) employment will not interfere with studies, and 5) employment will not exceed 20 hours per week during the school year. Temporary employment for practical training, both before and after completion of the studies, is permitted upon the school’s certification that 1) the employment qualifies as practical training, and 2) comparable employment is not available in the home country.
F-2 visa holders are not permitted to work.
The "G" Visas - International Organization Representatives: G-1 visa holders are "principal representatives" of governments recognized at law by the United States, and their family members. G-2 visa holders are "other accredited representatives" of foreign governments recognized at law by the United States, and their family members. G-3 visa holders are either "principal" or "other" accredited representatives of governments not recognized at law by the United States government, and their family members. G-4 visa holders are officers and employees of international organizations and their family members. G-5 visa holders are attendants, servants, and personal employees of G-ls through G-4s. The visas are normally issued for one year, are renewable, and only family members of the G-4 class may accept employment, subject to approval by the INS.
The "H" Visas - temporary Workers: An employer must petition to have the "H" visa holders admitted (the alien certification process) and the visas are valid for the employment and period specified in the approved petition, but may be extended.
H-1 visa holders are those who qualify as persons of distinguished merit and ability, including professionals, artists, doctors, athletes, and entertainers, and any necessary managers, trainers, and accompanists that are a part of the entourage. Initially, the visa is good for a maximum of three years. (But the person may, alternatively, have an "O" or "P" visa issued after October, 1991; see below.)
H-lB visa holders are those who qualify for hire in specialty occupations, or as fashion models of distinguished merit and ability. These visa holders must have a bachelor’s degree or higher, and perform services requiring the "theoretical and practical application of a body of highly specialized knowledge." Employment is authorized for up to six years.
H-2 visas are issued to any alien coming to the United States for work of a temporary nature, and includes all types of seasonal workers.
H-2A visa holders are those nonimmigrants admitted for temporary agricultural work under provisions of IRCA. The employer must first make an effort to recruit domestic workers before resorting to the use of H-2A workers.
H-3 visas are issued to trainees coming to the United States to receive training not available in the alien’s own country, excluding graduate medical school.
H-4 visas are issued to the spouse and children of H-1, H-2, and H-3 visa holders. They may not accept employment unless they are specifically included in the employer’s petition.
The "I" Visas - Information Media Representatives: The I-visa holder is a representative of the foreign press, radio, film, television, or other media. The visas are issued only if U.S. citizens are granted reciprocal privileges in the foreign country, and the visas authorize admission only for the duration of the employment.
The "J" Visas - Exchange Visitors: J-1 visas are issued to aliens participating in exchange visitor programs as students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders. Spouses and children are admitted on J-2 visas. Both J-ls and J-2s are valid for one year or less but may be extended. J-2 visa holders may work for their own support, but not for the support of a J-1. J visa holders may apply for waiver and convert to another nonimmigrant status.
The "K" visas - Fiancee or Fiance of U.S. Citizen: A "K" visa is good only for 90 days and provides a special permission to come to the United States solely to conclude a valid marriage with a U.S. citizen. The U.S. citizen must petition on behalf of the visa holder; if granted, the "K" visa holder will generally become a permanent resident alien. The fiance or fiancee is granted the K-1 visa; any accompanying children are K-2 visa holders. employment is not authorized during the 90-day period, and if there is no marriage, the "K" visa holder must depart. Status is not adjustable if there is no marriage.
In 1986, Congress adopted the Immigration Marriage Fraud Amendments to deter fraud through sham marriages. Immigrating aliens are subject to a two-year conditional residency requirement before they may obtain permanent residency status on the basis of a "qualifying" marriage, unless the marriage is over two years in duration at the time entry is sought. If the petitioners fail to petition for permanent residency status within ninety days of the expiration of the conditional residency, the conditional residency is terminated and the alien spouse is deportable. Marriage fraud is a perpetual bar to permanent residence.
The "L" Visas - Intra-Company Transferee: The employer who wishes to transfer employees temporarily to the United States to aid or initiate business operations must submit a petition to the INS district where the alien will be employed. The L-1 visa holder must be employed in a managerial or executive capacity, or have specialized knowledge. Visas are valid to a maximum of 3 years, but are renewable. The spouse and children may be granted L-2 visas, but employment is not authorized.
The "M" Visas - Students Enrolled in a Vocational or Nonacademic Program: The M-1 visa is issued to a student who is enrolled at an established or recognized vocational or other nonacademic institution (academic students are granted "F" visas; see above). The visa is for the period of time necessary to complete the course of study plus thirty days, and is renewable. Temporary employment for practical training may be authorized after the course of study is completed, and upon recommendation of the school. M-2 visas are issued to the spouse and children. M-2 visa holders may not accept employment.
The "N" Visas - Relatives of G-4 Employees of International Organizations: "N" visas are issued to the parents or relatives of G-4 visa holders (attendants, servants. and personal employees of principal representatives of international organizations) but only if, and while, the G-4 holder’s relative is a child.
The "O" and "P" Visas - Extraordinary Abilities: The "O" and "P" visa classifications are reserved for those previously admitted under H-lB visa classifications, and includes those persons with extraordinary ability, persons accompanying them, athletes, and entertainers.
The "TC" Visas - Canadian Business Travelers and Their Families: In 1988, the United States/Canada Free Trade Agreement established special procedures for Canadian business visitors, traders, investors, professionals, intra-company transferees, and their families, with reciprocal rights of entry provided to United States citizens. The spouse and children enter as B-2 visitors for one year, renewable.
4. Permanently Residing in the United States Under Color of Law (PRUCOL)
"Permanently residing under color of law," or PRUCOL, is a status that is not recognized by INS. It is recognized by FUTA (and, therefore, our Section 1264) as an outgrowth of Holley v. Lavine, a 1978 appellate court case.
In the Holley case, Ms. Holley entered the United States legally on a student visa, but married and failed to return home to Canada when her visa expired. After she and her husband separated, leaving Ms. Holley as sole support of six children, Ms. Holley applied for Aid to Families with Dependent Children (AFDC). The Social Services Department determined that the children, all born in the United States, were entitled to AFDC benefits, but that Ms. Holley was not because she was not authorized to be present in the United States when she applied for AFDC. When she contacted the INS, they affirmatively decided not to deport her because of the tender age of her children and because the children were U.S. citizens by virtue of being born in the United States, and therefore they, themselves, could not be deported with their mother. The INS gave Ms. Holley a letter to this effect. In deciding that MS. Holley’s status was very close to that of being legally admitted based on the INS letter affirmatively advising her that she was not going to be deported, the appellate court fashioned a remedy, using the phrase "color of law." The court found:
"The phrase . . . includes actions not covered by specific authorizations of law. It embraces not only situations within the body of the law, but also others enfolded by a colorable imitation. "Under color of law" means that which an official does by virtue of power, as well as what he does by virtue of right. The phrase encircles the law, its shadows, and its penumbra. When an administrative agency or legislative body uses the phrase "under color of law" it deliberately sanctions the inclusion of cases that are, in strict terms, outside the law but are near the border."
Title 22, Section 1264-l(c)(5) provides:
"Permanently residing under color of law" or "PRUCOL" means that an alien was residing in the United States with the knowledge and permission, express or implied, of the INS and that the INS did not contemplate enforcing his or her departure. The INS shall be considered to have not contemplated enforcing the alien’s departure if its policy or practice was to not enforce the departure of aliens in the same immigration status as the claimant or, even if the INS’S policy or practice was to enforce the departure of aliens in that status generally, it appears from all the facts and circumstances in the particular case, that the INS decided not to enforce the departure of the particular claimant. Except as otherwise provided in this regulation, an alien shall not be considered PRUCOL merely because he or she has applied to the INS for an initial legal immigration status and thereby became known, by imputation, to the INS. As used in the preceding sentence, "initial legal immigration status" means a status that would allow the alien, for the first time, to reside lawfully in the United States.
Listed below are specific categories considered to be PRUCOL and the corresponding document or documents commonly possessed by an alien in each category. This list in nonexclusive. The department shall apply the general definition of PRUCOL, as set forth in this subdivision, to determine the status of an alien who claims to have been PRUCOL during the base period but who is not within a listed category and will consider any documentary evidence presented by an alien to establish his or her PRUCOL status regardless of whether it is listed.
For some categories an alien is PRUCOL only if the INS did not contemplate enforcing the alien’s departure. If a category requires such a determination, the department shall apply the following guideline. If the alien possesses a document which was valid for an indefinite period of time, or for a definite period of time which did not expire during the alien’s base period, in the absence of evidence to the contrary it shall consider that the INS did not contemplate enforcing the alien’s departure.
The specific PRUCOL categories and documents are as follows:
(A) Category: Aliens paroled into the United States pursuant to 8 USC 1153(a)(7). These are non-preference immigrants. Document: INS Form I-94 endorsed "Refugee - Conditional Entry."
(B) Category: Aliens paroled indefinitely into the United States pursuant to Section 212(d)(5) of the Immigration and Nationality Act, 8 USC 1182(d)(5), including Cuban/Haitian entrants. These are aliens paroled indefinitely at the discretion of the U.S. Attorney General. Documents: INS Form I-94 with a notation that the alien was paroled pursuant to Section 212(d)(5) of the Immigration and Nationality Act, or as to Cuban/Haitian entrants, "Cuban/Haitian entrant (status pending) reviewable January 15, 1981." Note: Although these forms may bear the notation, "Employment authorized until January 15, 1981," Cuban/Haitian entrants are admitted under Section 212(d)(5) of the Immigration and Nationality Act, and notwithstanding the January 15, 1981 date, their parole has been extended indefinitely by INS policy.
(C) Category: Aliens residing in the United States pursuant to a stay of deportation. Documents: INS letter so stating or INS Form I-94 with such notation.
(D) Category: Aliens residing in the United States pursuant to a grant of an extended voluntary departure for a definite period of time. Documents: INS letter so stating or INS Form I-94 showing that INS has granted the alien an extended voluntary departure category for a definite period of time.
(E) Category: Aliens, and the families of such aliens included in the petition, with respect to whom the INS has approved an immediate relative petition and whose departure the INS does not contemplate enforcing. Documents: INS Form I-94, I-171, or I-210 letter showing such status.
(F) Category: Aliens who were inspected and admitted or paroled into the United States who have subsequently filed applications for adjustment of status to that of lawfully admitted for permanent residence if:
(1) The INS has accepted the application as "properly filed," and
(2) The INS does not contemplate enforcing the alien’s departure. Documents: INS Form 181, a passport so endorsed, an INS fee receipt indicating that the application was filed or an INS appointment letter for a hearing on the application.
(G) Category: Aliens granted stays of deportation as a group, class, or category, by court order, statute, or regulation, or by individual determination by the INS, and whose departure the INS does not contemplate enforcing. Documents: Form I-94, INS order or letter so stating, Board of Immigration Appeals or court order so stating, or other documents evidencing an automatic stay of deportation by operation of law pending a decision by a court or administrative body with jurisdiction to decide the question.
(H) Category: Refugee aliens granted asylum pursuant to Section 208 of the Immigration and Nationality Act. Documents: INS Form I-94 and a letter establishing such status.
(I) Category: Aliens admitted as refugees under either Section 207 or Section 203(a)(7) of the Immigration and Nationality Act. Documents: INS Form I-94 so endorsed.
(J) Category: Aliens granted voluntary departure pursuant to Section 242(b) of the Immigration and Nationality Act or 8 CFR 242.5 whose departure the INS does not contemplate enforcing. Documents: INS Form I-94, I-210 bearing a departure date, or EOIR-6.
(K) Category: Aliens granted deferred action status pursuant to INS Operating Instructions 103.1(a)(ii) prior to June 15, 1984, or Operating Instructions 242.1(a)(22) on or after June 15, 1984. Documents: INS Form I-210 or an INS letter showing that departure has been deferred.
(L) Category: Aliens residing in the United States under order of supervision pursuant to Section 242 of the Immigration and Nationality Act. Document: INS Form I-220B.
(M) Category: Aliens who entered and have continuously resided in the United States since at least January 1, 1972, who have applied for a record of lawful admission pursuant to Section 249 of the Immigration and Nationality Act and who can prove that they are likely to be granted a record of lawful admission because they meet all the requirements of that section. Document: No specific document.
(N) Category: Aliens granted suspension of deportation pursuant to Section 244 of the Immigration and Nationality Act and whose departure the INS does not contemplate enforcing. Documents: Order from an immigration judge or other proof of such status from INS.
(O) Category: Aliens whose deportation has been withheld pursuant to Section 243(h) of the Immigration and Nationality Act. Documents: Order from an immigration judge or other proof of such status from INS.
(P) Category: Any other aliens living in the United States with INS’s knowledge and permission and whose departure INS does not contemplate enforcing. Document: No specific document.
5. Declaration of Status When Wages Were Earned
Unemployment Insurance Code Section 1264(b) provides:
Any data or information required of individuals applying for benefits specified by subdivision (a) to determine whether these benefits are not payable to them because of their alien status shall be uniformly required from all applicants for these benefits.
Title 22, Section 1264-l(d) provides:
"As a condition of eligibility and in order for the department to determine the extent to which base period wages may be used in the computation of benefits, all claimants shall state whether and to what extent they were United States citizens, nationals, or in one of the immigration statuses listed in subdivision (a) of this section, when they performed base period services."
Application of the code and regulation requires that all claimants, citizen and alien, certify to status during the base period.
6. "Preponderance of Evidence" Requirement
Unemployment Insurance Code Section 1264(c) provides:
"In the case of an individual whose application for benefits specified by subdivision (a) would otherwise be approved, no determination by the department, an administrative law judge, or the appeals board that these benefits to the individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence."
Title 22, Section 1264-l(b) provides:
"An alien has the burden of proving the extent to which he or she performed base period services while in one or more of the statuses listed in subdivision (a). Any determination by the department that an alien was not, or was not to the extent stated in the determination, in one of the status’s listed in subdivision (a) during his or her base period, shall be based on a preponderance of the evidence. Such evidence may include evidence that the Immigration and Naturalization Service (INS) was unable to verify the alien’s immigration status under Section 1326-13 of these regulations (SAVE verification; see C.1., below) and any other relevant information provided by the INS in response to the department’s request for such verification."
Title 22, Section 1264-l(c)(2) defines "preponderance of the evidence" as "such evidence that, as when weighed against the evidence opposed to it, has the more convincing force and the greater probability of truth."
Title 22, Section 1326-13, provides:
"If the INS responds to the department’s verification request for a claimant by including information about the length of time a claimant has been in a particular immigration status, the department may use such information in making a determination with respect to a claimant’s status during his or her base period under Section 1264-1 of these regulations."
In the absence of any information that his or her status did not carry work authorization during the base period, the claimant who has any evidence purporting to show that he or she was authorized to work during the base period of the claim has sustained his or her burden of proof.
Example 1, Employer Information: Claimant A signs a certification on the claim form that he was authorized to work during all of the base period. Employer B reports on the claim form that Claimant A was arrested and deported by INS officials during the base period (or that the INS told the employer that the claimant’s documents supporting the employer’s I-9 form were invalid). Since there is concrete evidence that the claimant was not work authorized during the period of time the wages were earned, Claimant A has not sustained his burden of Proof.
Example 2, No Contrary Evidence: Claimant C contends, based on a document currently in his possession, that he was authorized to work during all of the base period. The department has no evidence to the contrary. Claimant C has sustained his burden of proof.
Example 3, Noncompliance With State Law: Claimant D has a fourth grade education. The field office feels that the claimant is not a United States citizen based on lack of formal education and the state requirement that a child remain in school through age 16, even though the claimant has certified that he is a United States citizen. In the absence of any evidence to the contrary, the claimant has sustained his burden of proof of citizenship based upon his certification under penalty of perjury, despite noncompliance with state law.
Example 4, Lack of English Language Facility: Claimant E speaks broken English and is more proficient in a language other than English. He certifies that he is a United States citizen. Inability to converse fluently in English is not evidence that the claimant is an alien, and the claimant has sustained his burden of proof on the basis of his declaration under penalty of perjury.
If there is a conflict in evidence as to whether the alien claimant’s base period wages may be used, and no piece of evidence is the more convincing, the interviewer should ask INS to make the final determination of base period status. Field office staff should complete a request for secondary verification, indicating the reason for the request and the dates of the base period that are in issue. Inclusion of the dates is particularly important, since INS status verifiers will not know the inclusive dates of the base period. Refer to FOM Completion for instructions.
7. Handling Wage Credits
There are two methods of handling wage credits, depending upon whether or not they belong to the claimant; and, if they do belong to the claimant, whether or not they are otherwise usable wage credits.
a. Suppression of Wage Credits
Wage credits will be suppressed if they were actually earned by the claimant but are unusable for UI purposes.
After identification of usable wage credits, whether earned when the claimant was lawfully admitted for permanent residence, lawfully present for the purposes of performing the services, or permanently residing in the United States under color of law, the interviewer must suppress the unusable wage credits that increase an award.
If all the claimant’s wage credits are unusable, do not process a recomputation request to suppress wages; merely issue a disqualification under Section 1264.
If a portion of the wage credits are unusable, ask to have the wages suppressed, rather than deleted. Suppression of the wage credits retains the wages under the Social Security number so that the wages may be used for Disability Insurance purposes. Follow instructions for recomputations in FOM Completion.
In Ayala v. CUIAB, a 1976 appellate court case, the claimant was denied benefits based on wage credits earned while he was in an illegal status. The Second District Court of Appeal held:
"Ayala is an illegal alien residing in the United States without a work permit who was employed by the same employer from 1968 until laid off on February 18, 1972 because he was physically unable to work . . . To conclusively presume that an illegal alien who has been attached to the labor force and who has in all respects complied with the sections of the Unemployment Insurance Code (i.e., paid his share of the DI taxes) cannot, simply because he is an illegal alien, collect disability benefits is contrary to the statutes. . . . The Wagner-Peyser Act has no relation to a state system of disability benefits which is financed from worker contributions."
Once a disqualification has been issued under Section 1264, whether for part or all of the base period wage credits, the disqualification cannot be purged unless there is new evidence indicating the previous determination was in error and the claim is redetermined. The disqualification remains in effect for the life of the claim, and the claimant cannot file another claim until the benefit year has expired on the claim that is subject to the disqualification.
b. Deletion of Wage Credits
Wage credits will be deleted if they do not belong to the claimant; since they are not the claimant’s wage credits, the claimant’s status when they were earned is immaterial.
If any wage credits remain after deletion of the wage credits that do not belong to the claimant, but the remaining wage credits are insufficient for a claim, the claim is invalid. In that event, the claimant may file again within the old benefit year and establish a claim if there are sufficient usable wage credits at the later date.
If wage credits are deleted as not belonging to the claimant, valid wage credits remain, and some of the remaining wage credits are not usable as not having been earned while the claimant was in one of the acceptable statuses, the claimant must be disqualified under Section 1264 for the unusable wage credits.
C. Present Status Determinations
Present status determinations are mandated by the Immigration Reform and Control Act of 1986 (IRCA), which provides:
"Sec. 274A. (a) MAKING EMPLOYMENT OF UNAUTHORIZED ALIENS UNLAWFUL.
(1) In general. - It is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States
(A) an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment, or
(B) an individual without complying with the requirements of subsection (b).
(2) Continuing Employment. - It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.
(3) Defense. - A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (l)(A) with respect to such hiring, recruiting, or referral.
(b) Employment Verification System. - The requirements referred to in paragraphs (l)(B) and (3) of subsection ~a) are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the requirements specified in the following three paragraphs:
(1) Attestation After Examination of Documentation.
(A) In general. - The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining -
(Please refer to DE 8455 for appropriate documentation.)
(2) Individual Attestation of Employment Authorization. - The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Attorney General to be hired, recruited, or referred for such employment.
(h) Miscellaneous Provisions.
(3) Definition of Unauthorized Alien. - As used in this section, the term ’unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.
(3) Grandfather for Current Employees. - (A) Section 274A(a)(1) of the Immigration and Nationality Act shall not apply to the hiring, or recruiting or referring of an individual for employment which has occurred before the date of the enactment of this Act.
(B) Section 274A(a)(2) of the Immigration and Nationality Act shall not apply to continuing employment of an alien who was hired before the date of the enactment of this Act.
Sec. 121. VERIFICATION OF IMMIGRATION STATUS OF ALIENS APPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS.
(a) Requiring Immigration Status Verification. -
(1) UNDER AFDC, MEDICAID, UNEMPLOYMENT COMPENSATION AND FOOD STAMP PROGRAMS - Section 1137 of the Social Security Act (42 U.S.C. 1320b-7) is amended -
(C) by adding at the end the following new subsections: "(d) The requirements of this subsection, with respect to an income and eligibility verification system of a State, are as follows:
(l)(A) The State shall require, as a condition of an individual’s eligibility for benefits under any program listed in subsection (b), a declaration in writing by the individual (or, in the case of an individual who is a child, by another on the individual’s behalf), under penalty of perjury, stating whether or not the individual is a citizen or national of the United States, and, if that individual is not a citizen or national of the United States, that the individual is in a satisfactory immigration status.
(B) In this subsection -
(ii) in the case of the program described in subsection (b)(4)
(I) any reference to the State shall be considered a reference to the State agency, and
(II) any reference to an individual’s eligibility for benefits under the program shall be considered a reference to the individual’s eligibility to participate in the program as a member of a household. and
(III) the term ’satisfactory immigration status’ means an immigration status which does not make the individual ineligible for benefits under the applicable program.
(2) If such an individual is not a citizen or national of the United States, there must be presented either -
(A) alien registration documentation or other proof of immigration registration from the Immigration and Naturalization Service that contains the individual’s alien admission number or alien file number (or numbers if the individual has more than one number), or
(B) such other documents as the State determines constitutes reasonable evidence indicating a satisfactory immigration status.
(3) If the documentation described in paragraph (2)(A) is presented, the State shall utilize the individual’s alien file or alien admission number to verify with the Immigration and Naturalization Service the individual’s immigration status through an automated or other system (designed by the Service for use with States) that
(A) utilizes the individual’s name, file number, admission number, or other means permitting efficient verification, and
(B) protects the individual’s privacy to the maximum degree possible.
(4) In the case of such an individual who is not a citizen or national of the United States, if, at the time of application for benefits, the statement described in paragraph (1) is submitted but the documentation required under paragraph (2) is not presented or if the documentation required under paragraph (2)(A) is presented but such documentation is not verified under paragraph (3)
(A) the State -
(i) shall provide a reasonable opportunity to submit to the State evidence indicating a satisfactory immigration status, and
(ii) may not delay, deny, reduce, or terminate the individual’s eligibility for benefits under the program on the basis of the individual’s immigration status until such a reasonable opportunity has been provided; and
(B) if there are submitted documents which the Secretary determines constitutes reasonable evidence indicating such status -
(i) the Secretary shall transmit to the Immigration and Naturalization Service photostatic or other similar copies of such documents for official verification,
(ii) pending such verification, the Secretary may not delay, deny, reduce, or terminate the individual’s eligibility for financial assistance on the basis of the individual’s immigration status. and
(iii) the Secretary shall not be liable for the consequences of any action, delay, or failure of the Service to conduct such verification.
(5) If the Secretary determines, after complying with the requirements of paragraph (4), that such an individual is not in a satisfactory immigration status -
(A) the Secretary shall deny or terminate the individual’s eligibility for financial assistance, and
(B) the applicable fair hearing process shall be made available with respect to the individual.
1. Availability (A&A) Determinations
Unemployment Insurance Code Section 1253 provides:
"An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that:
(c) He or she was able to work and available for work for that week"
Title 22, Section 1253(c)-l(b) incorporates portions of IRCA, and provides:
"General Rule. A claimant is available for work during the week for which he or she claims benefits if the claimant is ready, willing, and able to accept suitable employment or has good cause for any restriction on his or her readiness, willingness, or ability to accept such employment and, notwithstanding such a restriction, a substantial field of employment remains open to the claimant in his or her labor market. A claimant is not available for work if he or she is unable to establish his or her employment eligibility upon hire in accordance with the requirements of Section 274A(b) of the Immigration and Nationality Act, 8 USC 1324a(b)."
a. Establishing Employment Eligibility:
Title 22, Section 1253(c)-l(e) provides:
"(1) A claimant shall be unavailable and the department shall determine him or her ineligible under Section 1253(c) of the Code if the department finds that the claimant is unable to establish his or her employment eligibility. The claimant’s inability shall be considered a restriction on his or her availability.
(2) As used in this regulation "establish his or her employment eligibility" means the claimant presents the document or documents and makes the attestations required by Section 274A(b) of the Immigration and Nationality Act . . . on the form designated by the United States Attorney General for such purposes, commonly referred to as the "I-9," so that an employer can, if necessary to establish an affirmative defense to any liability asserted under the Act, verify the claimant’s identity and work authorization.
(3) The department may base its finding that the claimant is unable to establish his or her employment eligibility on information from the claimant, information from prospective or former employers, information that results from the claimant’s registration for work as provided by Section 1253(b)-1 of these regulations, or information that results from the department’s request to the INS to verify the claimant’s immigration status for purposes of determining his or her eligibility for unemployment compensation benefits under Section 1326-13 of these regulations."
Title 22, Section 1326-13(b) provides:
"A claimant who declares himself or herself to be in a satisfactory immigration status shall, as a further condition of eligibility, have that status verified by the INS based on documents presented by the claimant. Such verification shall be either through an automated system utilizing the claimant’s alien registration or file number, known as the Systematic Alien Verification for Entitlements or "SAVE" system, or by the department sending a photocopy of the original document the claimant submits as evidence of his or her satisfactory immigration status to the INS for inspection.
If the INS does not verify the claimant’s status the department shall consider the claimant’s immigration status as unsatisfactory and shall determine or redetermine the claimant’s eligibility based on that response.
Example 1 - Counterfeit Documents: Claimant A presents documents which he alleges are valid. Claimant A’s number, when queried to the SAVE automated system, reveals the notation, "institute secondary verification." After review by the INS, the secondary verification is returned with the notation, "This document is not valid because it appears to be . . . " (block 12.c., counterfeit, checked.)
The interviewer will redetermine the claim, deny benefits accordingly, and establish an overpayment for any benefits previously overpaid. The overpayment is not waivable because the benefits were paid as the result of a false statement.
NOTE: Some claimants have contacted the field offices with fraudulent documents; when questioned after the secondary has been returned from INS with a "counterfeit" notation, the claimants indicate they have "real" documents at home, in a safe place; they only carry the counterfeit documents to have some sort of documentation on their persons. The "real" documents must also be verified, and the claimant should be encouraged to destroy the fraudulent document. Do not confiscate the document(s).
IRR: The claimant who knowingly presents fraudulent documents is not allowed a "reasonable opportunity" period to submit "real" documents because INS has previously responded to the secondary with a correct response. The claimant will be disqualified for failure to comply with regulations for the weeks already paid, and until such time as the "real" documents are submitted for verification.
AA: There is no A&A issue at this point.
FS: There is a false statement issue, but since the claimant could reasonably have expected to be denied benefits on the basis of the fraudulent card, there is a very real question as to whether there was the requisite intent to draw benefits on the basis of the fraudulent documents. The claimant’s response to questioning will determine if FS should be assessed.
If, however, the claimant’s only document is counterfeit, there is a disqualifying false statement issue also.
Example 2 - Asylee/Refugee: Claimant B presents documents which he alleges are valid. Claimant B’s number, when queried to the SAVE automated system, reveals the notation, "institute secondary verification." After review by the INS, the secondary verification is returned with Block 5, "This document relates to an alien having been granted asylum/refugee status in the United States," checked. Claimant B’s status is valid and Claimant B is work authorized.
Example 3 - "Continue to Process": Claimant C presents documents which he alleges are valid. Claimant C’s number, when queried to the SAVE automated system, reveals the notation, "institute secondary verification." After review by the INS, the secondary verification is returned with Block 11, "Continue to process as legal alien. INS is searching indices for further information," checked.
The INS database dates from approximately 1957; older records will not be in the system. An alien who entered the United States prior to 1957 will be entered into the system once INS determines that his or her status is valid. INS determination of status requires hand-search of paper records at the office where the alien entered the country, or wherever the file was subsequently shipped. We will continue to pay this individual (if otherwise eligible) until such time as INS advises that his or her status is not valid.
Example 4 - Different Name on Primary Verification: Claimant D presents documents which he alleges are valid. Claimant D’s number, when queried to the SAVE automated system, reveals the notation, "Legal Permanent Resident - Employment Authorized." The information on the SAVE screen, however, reveals a different name, date of birth, and country of birth.
The interviewer must submit a request for secondary verification and should note, "See name, DOB, country of birth difference."
For other statuses, the interviewer must check with INS. See also the list of deportable and excludable categories given in C.5.
b. Work Authorization Expiration Problems:
Expired Work Authorization
Those aliens who are not permanent residents will have work authorizations with expiration dates. Title 22, Section 1326-13(c) (1)(I) provides:
"If INS responds to the department’s verification request by notifying the department that the claimant’s employment authorization is temporary, with a specific expiration date, the department may consider the claimant’s satisfactory status to expire as of that date and it shall make a determination or redetermination of the claimant’s eligibility as of that date unless the claimant, prior thereto, provides documents that establish that the claimant is verified under a category that extends the expiration date. "
It is the claimant’s responsibility to demonstrate a continuing work authorization, and to update the work authorization before it expires. Once the work authorization has expired and the department has no documented evidence that the work authorization has been extended, the department can no longer pay benefits. A receipt indicating that the claimant has applied for a work authorization extension is not evidence that the work authorization has been extended, it only indicates that the individual has applied. Benefits will be denied under A&A, and the denial of benefits is immediate; there is no "reasonable opportunity" period to submit updated documents (the "reasonable opportunity" period only addresses the period in which the claimant is to bring in documents for SAVE primary or secondary verification).
In Gutierrez v. Employment Development Department, (1993), the court held that an alien without current, valid authorization to work from the INS is not legally available for work and not eligible for benefits.
In the Gutierrez case, the claimant was a Mexican national who had entered the United States in 1978 without a visa. In 1980 she received a voluntary INS deportation order setting May 15, 1981, as her deportation date. This date was later extended to February 15, 1982, and she was given permission to work by the INS which expired in March, 1982. The claimant continued to reside in the United States beyond her voluntary departure date.
In November 1985 she filed a claim for unemployment insurance benefits. The Department denied benefits under Section 1264. Claimant appealed this decision to an ALJ, who reversed EDD’s determination. The Department did not appeal the ALJ’s decision, but instead issued a new denial of benefits based on Section 1253(c). Claimant again appealed to an ALJ, who upheld EDD’s determination. Claimant then sought a writ of mandate in the Sacramento Superior Court, which was denied. Claimant appealed to the Court of Appeal. The Third District Court of Appeal affirmed the Department’s decision denying benefits under Section 1253(c). In its decision the court cited Department of Labor’s Unemployment Insurance Program Letter No. 1-86:
"Under the laws of all States, a claimant must be ’able and available’ to work to be eligible for unemployment compensation. . . (A)n alien must be legally authorized to work in the United States to be considered ’available for work.’ Therefore, an alien without current, valid authorization to work from the INS is not legally available for work and not eligible for benefits."
The Court went on to state:
"In order to be available for employment within the meaning of section 1253, an individual must be willing and able to accept suitable work within a substantial field of employment. This presupposes the individual is lawfully permitted to accept such employment which, in the case of an undocumented alien, requires INS work authorization."
Title 22, Section 1326-13(c)(1)(I) provides:
"If the INS responds to the department’s verification request for a claimant by notifying the department that the claimant’s employment authorization is temporary, but without a specific expiration date, the claimant shall notify the department of the expiration date of the authorization applicable to his or her status."
INS does not generally advise the field office of the date that the work authorization expires; that date is on the claimant’s INS document or is presumed to be the date indicated on the G-845, in the case of a revoked legalization status.
Revoked Work Authorization
Title II of the Immigration Reform Control Act (IRCA), Legalization, makes provisions for legalization of status and subsequent adjustment of status to permanent residency, or denial of status. The information given to the legalization offices on an application is confidential and may not be used for any other purpose.
Because INS "legalization" employees are able to revoke status but are prevented by the confidentiality provisions of IRCA from notifying "enforcement" employees when status is revoked to allow the "enforcement" employees to deport the person who has not gained satisfactory immigration status, the field office will not generally know about revocation of status until the SAVE screen, which is maintained by the "enforcement" branch, indicates "institute secondary verification." This notation may be on the SAVE screen even though the claimant has a valid-appearing INS document with an unexpired work authorization (the legalization employees do not confiscate the revoked work authorization documents). For the same reasons of confidentiality, legalization offices are unable to reveal to EDD when the status was revoked. This situation poses a problem for the interviewer, faced with a secondary verification indication Block 10, "This document appears valid and relates to an alien not authorized employment in the United States," and a claimant who has a valid, unexpired work authorization. Once the office has received notification from INS that work authorization status has been revoked, the claimant is not available for work despite the presence of a valid-appearing work authorization. The disqualification must begin from the point the office received notification of revocation (the date on the G-845). The interviewer should not disqualify the claimant for failure to be in a satisfactory immigration status, as INS has not told us that the satisfactory immigration status was revoked, but merely that work authorization was revoked.
c. The Form I-9, Required After Hire:
The employee is required by law to complete a Form I-9 within three days of hire for a job to last more than three days, and by the end of the first working day if the job is of less than three days duration. The requirement applies to all employees hired after May 31, 1987, unless the person is employed as a domestic worker on an intermittent basis, is a leased employee, or is an independent contractor.
An employer is not required to have a Form I-9 for persons hired before November 6, 1986; these employees are "grandfathered" into the job.
An employee must complete a statement indicating whether he/she is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien authorized by the INS to work in the United States. If the employee is an alien, he/she must declare his/her alien registration number, and the date the work authorization expires, if applicable.
The employer must review and verify the documentation possessed by the employee (citizen and alien alike) and certify that he/she has examined the applicable documentation.
Both employee and employer attestations on the Form I-9 are given under penalty of perjury. A claimant who cannot legally make the required attestation, or who does not possess the required documentation, is not available for work because he or she is not legally employable.
2. Efforts to Seek Work (ESW) Determinations
Unemployment Insurance Code Section 1253 provides:
"An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that:
(e) He or she conducted a search for suitable work in accordance with specific and reasonable instructions of a public employment office."
Title 22, Section 1253(e)-l(a), provides:
"The claimant shall be required to show that he or she has . . . followed a course of action which is reasonably designed to result in his or her prompt reemployment in suitable work. . ."
Title 22, Section 1253(e)-l(b), provides:
"A claimant has not made a reasonable effort to search for suitable work on his or her own behalf if the department finds that he or she has wilfully followed a course of action designed to discourage prospective employers from hiring him or her in suitable work. The department shall consider a claimant to have followed such a course of action if it finds that the claimant has not made a good faith effort to obtain the documents necessary to establish his or her employment eligibility in accordance with the requirements of Section 1253(c)-l(e) of these regulations."
In this context, the key in determining whether ESW is satisfactory is the word "reasonable." If:
- A truck driver has no license to drive, any ESW as a driver is not reasonably designed to result in prompt reemployment;
- A typist can type a maximum of 30 words per minute, any ESW with a company that requires 70 words per minute is not reasonably designed to result in prompt reemployment; and
- A claimant has no documents allowing him or her to work, his or her ESW is not reasonably designed to result in prompt reemployment.
3. Irregular (IRR) Determinations
Unemployment Insurance Code Section 1253 provides:
"An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that:
(a) A claim for benefits with respect to that week has been made in accordance with authorized regulations."
There are several authorized regulations that are important in alien determinations:
a. Requirement for Certification: Title 22, Section 1326-2(b) (14), provides that the claimant shall set forth on the initial claim:
"A written declaration under penalty of perjury stating that the claimant is a citizen or national of the United States and, if not, that the claimant is in a satisfactory immigration status, as defined in Section 1326-13(c)(1) of these regulations. The claimant shall also make the statement set forth in Section 1264-l(d) of these regulations, as to his or her citizenship or immigration status during the base period."
The claimant who refuses to make the required certification is subject to an IRR disqualification until such time as he or she complies with the regulation.
b. Requirement of Original Documents: Title 22, Sections 1326-13(c) (3) and (c)(4) require the department to use original documentation when verifying immigration status.
(3) "Primary verification" means verification through the automated system implemented by INS for such purposes and based on the original proof of immigration registration with the INS bearing the claimant’s alien admission number or alien file number.
(4) "Secondary verification" means a verification which is not primary, as defined above. To request a secondary verification, the department shall send to the INS a photocopy of the original document presented by the claimant to establish his or her immigration status as satisfactory . . . "
The claimant who cannot supply original documentation for certification has not complied with regulations.
c. Requirement to Produce Documents Within Either of Two "Reasonable Opportunity" Periods: There are two "reasonable opportunity" periods, each of 21 days, both extendable upon a showing of good cause. The first "reasonable opportunity" period commences with the request for documents made in the course of filing the claim; the second commences with nonverification through SAVE. The claimant may waive entitlement to either, but if he or she claims entitlement to the "reasonable opportunity" period, benefits may not be delayed, denied, reduced, or terminated pending INS’s response. The Department must advise the claimant of the "reasonable opportunity" period and serve notice of the potential for overpayment if benefits are claimed during the "reasonable opportunity" period and the claimant’s status is determined not to be valid by the INS (see instructions for the DE 6315AL in FOM Completion.)
Title 22, Section 1326-13(b) provides, in part:
"A claimant who declares himself or herself to be in a satisfactory immigration status shall, as a further condition of eligibility, have that status verified by the INS based on documents presented by the claimant. .
The department shall provide a claimant who declares that he or she is in a satisfactory immigration status but who presents no document when filing his or her claim, a reasonable opportunity to present such documents for INS verification. The department shall provide a claimant who presents a document bearing his or her alien registration or file number for verification through the SAVE system, but whose immigration status is not verified by the INS through that system, a reasonable opportunity to present additional or other documents for INS’s verification. The department shall not delay, deny, reduce, or terminate the claimant’s eligibility pending any period of reasonable opportunity or the INS’s verification response.
If the INS does not verify the claimant’s status the department shall consider the claimant’s immigration status as unsatisfactory and shall determine or redetermine the claimant’s eligibility based on that response. . . ."
Title 22, Section 1326-13(c)(2) provides:
"Reasonable opportunity" means a period of twenty-one calendar days. This period shall begin, with respect to a claimant who files an initial claim in accordance with these regulations but lacks any document required by this section to complete the claim, on the day of such filing. This period shall begin, with respect to a claimant whose immigration status is not verified under subdivision (b) of this section, on the day the department notifies the claimant in person or by telephone or on the date of a written notification mailed to the claimant. The period of reasonable opportunity may be extended upon a showing of good cause for the claimant’s late presentation of documents.
"Good cause" shall have the same meaning as under Section 1328 of the Code and Section 5005 of this Title with respect to the untimely filing of an appeal and shall include mistake, inadvertence, surprise, or excusable neglect."
Title 22, Section 1326-13(e) provides:
"Reasonable opportunity to present documents. If a claimant declares that he or she is in a satisfactory immigration status but presents no documents for verification, the department shall provide the claimant a reasonable opportunity to present such documents. If, during such period, the claimant presents a document (without a number that can be accessed through SAVE) the department shall send a photocopy of the document to the appropriate INS office for secondary verification. Pending such a period of reasonable opportunity and INS’s response to the department’s verification request based on any documents presented by the claimant during such a period, the department shall not, based upon the claimant’s current immigration status, delay, deny, reduce or terminate his or her eligibility."
If the claimant cannot produce original documentation, or fails to produce the documentation within the reasonable opportunity period with no indication of good cause as to why he or she has not done so, the claimant will be disqualified under Section 1253 (a), IRR, until such time as he or she complies with the regulation. Any benefits paid will constitute an overpayment; it will not be waivable since the claimant was put on notice by the DE 6315AL that failure to supply the documents could result in an overpayment.
d. Requirement to Update Work Authorization: A claimant who has a work authorization for a definite period of time, and whose work authorization will expire during the benefit year of the current claim, must demonstrate a continuing ability to work by bringing the extension of work authorization into the field office before benefits may be paid past the original expiration date. Generally, the claimant is allowed ten days to bring in such authorization; if the claimant does not, has not shown good cause for failure to do so within the ten days, and there is no indication that the claimant’s status has reverted to, or become, illegal, the proper disqualification is IRR, failure to comply with a reasonable department request.
4. Suitable Work (SW) Determinations
Presuming that the offered job is otherwise suitable, a claimant who can establish work authorization, but who is unwilling to do so, has refused work without good cause. That claimant may not be available for work, and may also be subject to disqualification if the efforts to seek work do not demonstrate a "course of action reasonably designed to result in prompt reemployment" (see C.2., above.) The work will never be deemed unsuitable solely because the claimant cannot establish work authorization.
5. Voluntary Quit and Misconduct Disqualifications
The claimant who leaves or loses his or her employment because of an irregularity in the immigration status is not automatically subject to disqualification.
a. Voluntary Quit (VQ) Issues: A finding of "constructive voluntary quit" will generally be made when the claimant has been terminated from employment for an irregular immigration status. The concept presupposes that the claimant failed to do something to regularize his or her status, resulting in a separation. Title 22, Section 1256-l (f) provides:
"In some cases, the employee is deemed to have left work voluntarily even though the apparent cause of termination is the employee’s discharge by the employer. Such a leaving is designated as a constructive voluntary leaving and it occurs when an employee becomes the moving party by engaging in a voluntary act or in a course of conduct which leaves the employer no reasonable alternative but to discharge the employee and which the employee knew or reasonably should have known would result in his or her unemployment."
Examples of such conduct include such acts as failure to update an expiring work authorization, or failure to submit the required documents by the end of the third day of hire when the claimant has the ability to do so.
b. Misconduct (MC) Issues: A finding of misconduct will result if the claimant breaches a duty to his or her employer. Title 22, Section 1256-30(b) provides:
"Elements of Misconduct. Misconduct connected with his or her most recent work exists for an individual’s discharge if all of the following elements are present:
(1) The claimant owes a material duty to the employer under the contract of employment.
(2) There is a substantial breach of that duty.
(3) The breach is a willful or wanton disregard of that duty.
(4) The breach disregards the employer’s interests and injures or tends to injure the employer’s interests."
Examples of such conduct include such acts as wilful and deliberate falsification of a work application or work authorization status; or any conduct resulting in deportation or exclusion (see categories below.)
Examples of employer action that will not result in a finding of misconduct include discharge because the claimant looks or sounds "foreign"; an unsupported allegation that the claimant is "illegal"; or a discharge because the claimant did not bring the employer certain arbitrary, predesignated documents from the "acceptable document" list.
Aliens may be in the United States under other than immigrant or non-immigrant status. These aliens are those persons who are unclassifiable because they are attempting to adjust their status, and may or may not be authorized employment. They are considered to be "standing on the border," meaning they may be found excludable. While the distinction between deportation and exclusion is not important for UI purposes in and of itself, grounds for exclusion prevent adjustment of status; therefore, we cannot assume that all persons attempting to adjust status will be able to do so.
FOR EACH OF THE STATUSES INDICATED BELOW, THE INTERVIEWER MUST CHECK WITH INS THROUGH USE OF THE SECONDARY VERIFICATION PROCEDURES TO DETERMINE IF THE ALIEN IS, OR WAS, WORK AUTHORIZED DURING THE APPLICABLE PERIOD OF TIME. It is not necessary for the interviewer to know exactly which of the following covers the claimant’s situation; but claimants whose status is under appeal May have continuing work authorization.
Deportation and Exclusion: For nonimmigrants with visa authorization, once the permitting document has expired, the alien is immediately deportable. For temporary and permanent residents, there are about 700 grounds for deportation. Harisiades v. Shaughnessy, a United States Supreme Court case decided in 1952, held that Congress’ allowing aliens to enter the United States "is a matter of permission and tolerance. The government’s power to terminate hospitality has been asserted by this court since the question first arose."
The alien may be either excluded or deported.
Deportation, defined as the expulsion of an alien who has already entered the United States either legally or illegally, starts with an Order to Show Cause (why the alien should not be deported), and the claimant is afforded due process personal service of the notice, informing the alien of his or her right to appointed counsel and that any statements made may be used against him or her, a reasonable opportunity to examine the evidence against him or her, a hearing conducted in the claimant’s own language, and an opportunity to offer evidence and cross-examine government witnesses at the deportation hearing).
The burden of proof is on the government to prove deportability. Under certain criteria (generally, persons continuously present in the United States for ten years following the commission of the deportable act, persons of good moral character, and persons who would suffer exceptional and extremely unusual hardship if deported), deportation may be suspended at the discretion of the immigration judge. When suspension of deportation is granted, the number of non-preference immigrant visas for the country of origin is correspondingly reduced.
Withholding of Deportation will be granted discretionarily if the alien’s life or freedom would be threatened in the country to which he or she is to be deported, on account of race, religion, nationality, membership in a particular social group, or political opinion. If the immigration judge finds that the alien meets the statutory requirements, withholding of deportation is mandatory for the length of time the alien’s life or freedom would be threatened. Withholding of deportation is similar to applying for asylum; the difference is procedural in nature.
A Stay of Deportation may be granted an alien under a deportation order pending his or her application for permanent residence; it is discretionary. If granted, the stay terminates at a predesignated time and does not relieve the alien from complying with an outstanding order of deportation.
Exclusion hearings, while in practice nearly identical to deportation hearings, shift the burden of proof to the alien to prove his or her right to enter the country. Aliens have no constitutional right to enter the United States, and the INS has established inspection points to determine admissibility to the United States. If the investigating INS officer is unsure of the alien’s admissibility, the alien may be paroled into the United States; this alien is not considered to be "admitted," however, and may be excluded, once here, without formal deportation proceedings.
Voluntary Departure: Courts recognize deportation as a civil punishment, rather than criminal, but a deported alien is barred from entering the United States for five years un)ess he or she obtains special permission from the INS to reenter the United States. The alien may, however, apply for discretionary relief in the form of voluntary departure at the time of the deportation hearing. If granted, voluntary departure may eliminate or postpone the execution of the deportation order. This is the most popular of the deportation orders because it is not regarded as a true deportation, the alien may select his or her own destination, and the alien may reapply immediately for admission. The immigration judge makes the decision, which is reviewable by a federal court under certain criteria.
Extended Voluntary Departure (EVD) allows aliens to remain in the United States if they are from countries with dangerous public order situations (e.g., civil wars). In the past, extended voluntary departure has been extended to peoples from Afghanistan, Chile, Cuba, Ethiopia, Iran, Lebanon, Nicaragua, Poland, Uganda, and Vietnam. EVD is presently being used as the administrative vehicle for allowing family members of recently legalized aliens, who do not qualify for legalization on their own accounts, to remain in the United States with their legalized relatives.
Asylum is the granting of temporary residence and the right to work in the United States for one year, renewable for the period of time that the alien is entitled to refugee status. The asylum applicant applies for asylum while present in the United States, or at the border. Like other statuses, it is discretionary. If the request for asylum is not regarded as frivolous, the INS District Director may grant employment authorization. An alien who is granted asylum, and who remains in the United States for one year, may apply for adjustment of status as a permanent resident alien. If asylum is denied, the alien is subject to exclusion proceedings if the alien has not already entered the country; if the alien has already entered the country, the alien is subject to deportation proceedings, but may be granted voluntary departure.
Refugee status is granted, under Title 8 (Immigration and Nationality) of the United States Code, Section 1101(a)(42), to persons outside the country who are subsequently admitted as refugees:
"(A)ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
Refugees must be sponsored by a responsible person or organization, who will guarantee transportation from the refugee’s present home to the resettlement location in the United States. After one year, the refugee is entitled to apply for adjustment of status to lawful permanent resident.
Deferred Action Status or Non-Priority Status is based on an administrative guideline, not provided for by statute but by INS’s Operating Instruction 242.1a(22). INS District Directors may place an alien in either of these statuses if "adverse action would be unconscionable because of the existence of appealing humanitarian factors." Once this status is granted, INS will take no action to disturb the person’s alien status and departure is deferred indefinitely.
Extradition is a method by which a country obtains custody of a suspected criminal who is in another country’s jurisdiction. The crimes for which extradition is approved are established by treaty between countries; the United States presently has about 100 such treaties. The crimes for which an alien may be extradited are generally related to treason, murder, arson, and terrorism; there is an exception preventing extradition for "political offenses," even if occurring in the course of a rebellion, revolution, or war.
D. Issue Identification
The following fact patterns are guides to aid in issue identification and resolution. In each case below, assume alien status is the only issue present and the claimant is otherwise eligible for benefits. Subsections 1. through 3., below, deal with "present status" determinations; subsection 4., below, addresses base period determinations.
For purposes of analogy for A&A issues and to make INS requirements more understandable in terms all will recognize, consider a claimant’s work authorization status as similar to a driver’s license status. For a driver’s license, we would need to know: Is there a valid driver’s license, issued by the Department of Motor Vehicles, authorizing the person to drive? Has the test been taken and the license applied for, and if the person does not yet have a license proper), does the person have a valid, unexpired temporary license or receipt? Has the license expired at the time of the offense? Is the license restricted in some manner? Has the license been revoked? Consider also that INS considers an expired work authorization to be as valid for work as a highway patrolman regards an expired license to be valid for driving. There is no "good cause" exception to the document requirement, just as there is none with a driver’s license.
1. Issues Arising From Completion
NOTE: Some of the following issues should not have reached the determinations point at the time indicated in the facts; they are included here only because the issues actually do arise in "real life." Consider the following if a claimant is routed to determinations, either properly or prematurely:
a. Facts: Claimant A files a claim and indicates that he is in a satisfactory immigration status. Claimant A does not have his immigration documents with him, and the completion interviewer is unable to do a SAVE verification. The claimant is scheduled for immediate determination.
Resolution: The completion interviewer should have issued the DE 6315AL, Block 1 checked, advising the claimant that he has 21 days in which to submit documentation. Since the Department may not delay, deny, reduce, or terminate benefits pending a "reasonable opportunity" period in which to bring in documents, the determination interviewer authorizes payment for any forms submitted, issues claim forms for the next claim period, and issues the DE 6315AL, starting the "reasonable opportunity" period with the date of actual issuance of the DE 6315AL.
Workload count: None; clarification only.
b. Facts: Claimant B files a claim and indicates he is in a satisfactory immigration status. He does not, however, have any documents, having lost them some time ago. He has not applied for duplicates. He is scheduled for an interview in two weeks.
Issues: A&A, IRR.
A&A: The claimant has no documents to show an employer as required by the Employment Eligibility Verification (INS Form I-9) procedures. Therefore, Claimant B cannot be hired legally, and is not available for work as required.
IRR Satisfactory immigration status): Absence of documents does not mean that Claimant B is not in a satisfactory immigration status; his status is not revoked because he loses his documentation. In the absence of further information, no decision can be made on this matter. It is a non-issue at this time.
IRR (failure to comply with regulations): Title 22, Section 1326-13, requires a claimant to submit original documentation for SAVE or secondary verification. Since the claimant admittedly has no documents to verify and has not applied for duplicate documents, there is no purpose in offering him 21 days in which to submit documentation; under the facts given here, benefits would be denied.
Workload count: One, since there is only one transaction and occurrence for the same time period.
c. Facts: Claimant C has filed a claim and indicated she is in a satisfactory immigration status. She has, however, lost her documents. She has a receipt indicating she has applied for a duplicate document. There is no Alien Registration ("A") number on the receipt (if there were an A-number on the receipt, it could be verified through SAVE).
Resolution: Completion should have offered the "reasonable opportunity" period to produce replacement documents; or, if the claimant insists, should have instituted a secondary verification on the basis of the receipt (Title 22, Section 1326-13(c)(2)(B)(4) allows the claimant to submit documentation "which the claimant believes establishes his or her immigration status as satisfactory." The determinations interviewer will authorize payment for any weeks claimed, issue claim forms for the next claim period, and either 1) issue the DE 6315AL, Block 1, or 2) institute secondary verification and issue the DE 6315AL, Block 2, depending upon circumstances.
Workload count: None; clarification only.
d. Facts: Claimant D files a claim and indicates she is in a satisfactory immigration status. She also indicates, when asked for her work authorization documents, that she "uses her cousin’s card" (or, alternatively), has "bought the card from a reliable source; it’s never stopped me from working."
Issues: A&A, IRR FS (and AL- see 4., below.)
A&A: Regardless whether an employer will accept the card as sufficient to permit the claimant to work, the claimant must have entered the country legally and have been inspected by the INS. Since she has never been near INS, she is not legally A&A. Employer acceptance of a valid-appearing, but fraudulent, card is a defense to employer liability for violation of IRCA, but grants no status to the claimant.
IRR (failure to be in a satisfactory immigration status): INS has been prevented from deciding her status, since she has not entered the country legally; therefore, she is not in a satisfactory immigration status.
IRR (failure to comply with regulations): Title 22, Section 1326-13 requires the claimant to demonstrate her satisfactory immigration status; since Claimant D cannot, she has not complied with Department regulations.
FS: Since the claimant has indicated on her claim form that she is in a satisfactory immigration status, her statement on the claim form was a false statement. Whether or not the interviewer will assess an FS disqualification will depend upon the claimant’s attempts to defraud, but the issue should be considered, regardless of outcome. If the claimant openly and freely volunteers that her documents were not issued by the INS, there is probably a misunderstanding of the question on the claim form rather than a deliberate attempt to defraud. Apply usual false statement standards in making the determination.
Workload count: One, on the basis of one transaction and occurrence, on the issues indicated here. See also, 4. below, for the additional AL issue.
e. Facts: Claimant E files a claim and indicates that he is in a satisfactory immigration status. Claimant E submits documentary proof of his status and right to work, and the completion interviewer notices that the work authorization expired a week before the claim was filed.
Issue: A&A only.
A&A: The claimant’s work authorization has expired, meaning that he cannot legally be employed until the work authorization is updated. Until such time as the work authorization is updated, Claimant E is not available for work. If Claimant E has an appointment with INS to update the work authorization, the determinations interviewer may take desk certs, pending the outcome of the appointment; if Claimant E does not have an appointment, or has not contacted INS to update his work authorization, no desk certs will be taken.
If desk certs are taken on the strength of an INS appointment letter, only those weeks certified for that fall after the granting of the extension of the work authorization will be paid; the law does not provide for "presumptive eligibility" or any kind of "good cause" for weeks after expiration and before extension of status. It is the claimant’s responsibility to keep his/her work authorization current.
IRR: IRR is a non-issue in the absence of some information that the claimant’s right to remain in the United States has been revoked.
Workload count: One.
f. Facts: Claimant F is a noncitizen, married to a United States citizen who has filed a Relative Immmigrant Visa Petition for Claimant F. There are no "employment authorized" markings on the petition. Claimant F is claiming right to work on the strength of her marriage and the petition.
Resolution: Since Claimant F has submitted documentation that she believes constitutes proof of satisfactory immigration status, a DE 6315AL should have been issued and the copy of the petition sent for secondary verification. The determinations interview is premature. In the circumstances indicated here, the determinations interviewer should issue the DE 6315AL, start the secondary verification procedures, authorize any payable weeks for payment, and issue forms for the next claim period.
Workload count: None; clarification only.
2. Issues Scheduled After Secondary Verification Complete
Secondary verification, or the sending of a Document Verification Request (G-845), will normally take place at Completion. The determinations interviewer usually will not handle the claim until the secondary verification is returned and an issue has been identified. As above, assume that the claimant is "otherwise eligible" except for the issue(s) discussed in each example below.
a. Facts: INS returns the G-845 with Block 3. checked, and a restriction to part-time employment is also noted (Block 3.a.)
Issue: A&A only.
Resolution: Presuming the claimant has not previously told the Department of the restriction upon employment, the claimant should be able to tell the interviewer how restricted the work authorization is. In the majority of cases, the restriction will be imposed because the claimant is a student. The educational facility may also have the information the Department needs if the claimant cannot, or will not, supply it. Whether the claimant is available for work will depend upon the restriction, the labor market, the "substantial field of employment" remaining within that labor market, and whether Unemployment Insurance Code Section 1253.8(b) is applicable to the claimant’s situation.
Workload count: One.
b. Facts: The secondary verification is returned with Block 5., concerning asylee/refugee status, checked.
Resolution: Asylees and refugees are granted special status that carries work authorization.
Workload count: None; clarification only.
c. Facts: The secondary verification is returned with Block 6., parolee status, checked.
Resolution: Parolees are granted special status that carries work authorization.
Workload count: None; clarification.
d. Facts: The secondary verification is returned with Block 7., Cuban/Haitian entrant, checked.
Resolution: Cuban/Haitian entrants are granted special status that carries work authorization.
Workload count: None; clarification.
e. Facts: The secondary verification is returned with Block 8., conditional entrant, checked.
Resolution: Although this status was formally abolished by the Refugee Act of 1980, it was a status that carried work authorization. Now, "conditional entrant" refers to a refugee; work authorization is granted.
Workload count: None; clarification.
f. Facts: The secondary verification is returned with Block 9., "nonimmigrant," checked.
Resolution: Resolution of status will depend upon the claimant’s category, whether it is work authorized, and what restrictions have been placed upon employment. See listings of nonimmigrant codes in B.3., Lawfully Present for the Purpose of Performing Services.
Workload count: Because the interviewer will have to do some questioning and some research before deciding whether the claimant is or is not A&A, one count may be taken.
g. Facts: The secondary verification is returned with Block 10, "not authorized employment," checked.
Issues: A&A, FS. AL should also be considered see 4., below.
A&A: A claimant who is not work-authorized is not available for work. For discussion, see D.l.e., above.
IRR: IRR is a non-issue as the claimant may still be in a satisfactory immigration status.
FS: The claimant will be expected to know whether he/she is work authorized, and will be held accountable if he/she told the Department he/she was work authorized when he/she was, in reality, not authorized. The claimant will also be held liable for any resulting overpayment since he/she was put on notice by the DE 6315AL, Block 2.
Workload count: One.
h. Facts: The secondary is returned with Block 11, "continue to process as legal," checked.
Resolution: This response merely indicates that INS cannot make a determination right now. INS will eventually respond with its findings. Until such time as INS reports that the claimant is not in a satisfactory immigration status, the Department cannot delay, deny, reduce, or terminate benefits for that reason.
Workload count: None; clarification only.
i. Facts: The secondary verification is returned with Block 12.a., "the document is not valid because it is expired," checked.
Issue: A&A, potentially IRR.
Resolution: This response raises special problems, because it may reflect either the expiration date on the copy of the document the Department sent to INS (A&A only), or it may reflect revocation of status through the legalization branch (A&A and IRR; see C.l.b., above). Generally, if the document shows an expiration date in the future, a Block 10 response indicates the claimant’s status has been revoked by the legalization branch.
If the card is obviously expired, then the interviewer must determine the claimant’s efforts to update his/her work authorization. Close questioning of the claimant will determine the status and its resolution. The interviewer is cautioned not to conclude that status has been revoked before talking to the claimant.
Workload count: One, even if both issues are determined to be present, since they arise from the same transaction and occurrence.
j. Facts: Secondary verification document is returned with Block 12.b.. "altered." checked.
Issue: A&A, IRR, FS. (May also be an AL issue; see 4., below.)
Resolution: An "altered" document is one that was valid initially, but a name, date, or other information has been changed. Who altered the document, and when it was altered, is immaterial.
A&A: The claimant cannot work legally on an altered document, so he/she is subject to an A&A denial.
IRR: The claimant may or may not be in a satisfactory immigration status. Alteration of a document does not affect immigration status unless the document was not the claimant’s at any time. However, the claimant has not complied with regulations in that he/she has not supplied documents to the Department that evidence a satisfactory immigration status. Benefits will be denied for that reason, and until such time as the claimant can supply the proper documents.
FS: Knowledge that the card is not a bona fide immigration document is imputed to the claimant. Since the claimant is attempting to claim benefits on fraudulent documents, the claimant will also be subject to a denial under FS.
But see also, C.l.a., Example 1, above. Claimants have contacted EDD field offices with non-INS issued documents in the belief that they have to have something on their persons, and do not want to carry original documentation for fear of losing it. While this is not a wise decision, it is an understandable one. If the claimant can supply valid documentation, there is no FS disqualification because there is no intent to defraud.
Workload count: One, all the same transaction and occurrence.
k. Facts: The secondary verification is returned with Block 12.c., "counterfeit," checked.
Issue: A&A, IRR, and FS. (For AL, see 4., below.)
Resolution: See discussion under j., immediately above. "Counterfeit" differs from "altered" in that the counterfeit document was never valid; an altered document was valid until it was altered. The claimant is held responsible for knowing the document is a counterfeit, and will be denied benefits under A&A (not work authorized), IRR (not in a satisfactory immigration status), and FS (intent to defraud).
Workload count: One.
3. Issues Arising from Continued Claims
While, in general, the issues raised at Completion are very similar to those raised at Continued Claims (loss of documentary proof, loss of status, etc.), there are special issues raised at Continued Claims that do not present themselves at Completion.
a. Facts: The claimant (either citizen or alien) has not been hired because she could not show the appropriate documentation to an employer.
Issue: SW, ESW, AA, potential FS.
SW: The resolution of a SW issue may depend upon whether the employer based the employment decision on the claimant’s citizenship or alienage status (discriminatory, and prohibited by IRCA), or was prevented from hiring the person after the job was offered because of lack of documents (nondiscriminatory). The claimant, both citizen and alien, has three days in which to submit documentary proof of citizenship or a satisfactory immigration status and work authorization. If the claimant refused to submit documentary proof as a condition of being considered for the job, the employer request was not reasonable (because discriminatory) and the claimant is SW eligible.
If the claimant could have submitted the requested proof within three days (for jobs lasting longer than three days) and the employer would not allow him/her to do so, no SW disqualification may be assessed. The rationale is that the employer request was not a reasonable one.
If the claimant was hired conditionally, contingent upon submitting the documentation within three days, and the claimant is unable to do so because of lack of documentation, the claimant is SW eligible as he/she did not have the minimum qualifications (work authorization) for the job. (But see: A&A and ESW, below.) For the Section 1256 issue, see b., below.
If the claimant was hired conditionally, contingent upon submitting the documentation within three days, and refuses to do so for philosophical reasons or other reasons unrelated to the documentation itself, the claimant may be disqualified. The rationale is that the claimant refusal is not reasonable. (See also, ESW and A&A, below.)
NOTE: Under some circumstances, notably when the employee is "grandfathered" into the job; is laid off and recalled within three years; or is a domestic worker employed on an intermittent basis, a leased employee, or an independent contractor, the document requirements may be suspended. See C.l.c., above. For "grandfathered" employees and employees recalled within three years of layoff, the employer must require documentation of all employees falling into these classifications if the employer requires it of one employee. Selectively requiring documentation of only some employees is prohibited by IRCA.
A&A: To be available for work, the claimant must be able and willing to show documentation to an employer after hire. If the claimant is either 1) not able, or 2) not willing, the claimant is not available for work.
ESW: The work search of a claimant who has no documentation or unsatisfactory documentation, either citizen or alien, is a futile search because the claimant is not employable without documentary proof of right to work. Since the claimant has not "followed a course of action reasonably designed to result in prompt reemployment," the claimant has not complied with work search requirements and is subject to disqualification.
Potential FS: The potential for disqualification for FS will depend upon the individual circumstances of each case.
If the claimant had the documentation at the time of hire, but lost it prior to entering onto the job, there is probably no FS on the claimant’s part; the claimant had the documentation during the weeks previously claimed.
If the claimant has never had the required documentation, consider FS both in the initial claims process and for weeks previously claimed. This situation will most likely arise with an alien claimant who has declared that he/she is a citizen and whose documents were therefore not subjected to INS verification, or with the citizen claimant who cannot show identity and work authorization documents; in contrast, the alien claimant who has declared his or her correct status as an alien has submitted his or her documents for verification.
Workload count: One; there is only one transaction and occurrence, regardless of the number of issues developed.
b. Facts: The claimant entered onto the job, with the understanding that he/she would submit required documents within three days. He or she failed to do so.
Issue: VQ or MC, depending upon circumstances. Consider also, A&A.
VQ: If the claimant quits rather than show documentation to the employer, the claimant’s reasons for not wishing to show the documentation must be examined. Since our fact pattern reveals that there was an understanding that the documentation would be offered as required, within three days, the claimant’s acceptance of the job included acceptance of the requirement to show documents. The claimant must establish a compelling reason for failure to comply with the requirement.
Constructive VQ: If the claimant has the documents at the time of hire but has lost them by the time he/she enters onto the job and is asked to complete the Form I-9, the claimant has accepted the conditions of hire but is unable to comply with them. Since the employer is prevented from employing the claimant legally, the claimant has constructively quit the job as the requirement to produce documentation was within the claimant’s control and failure to produce the documents constitutes negligence; losing or misplacing documents can be anticipated, so the claimant is responsible.
MC: If the claimant accepts the job with the understanding that documentation is required, enters onto the job knowing that he/she does not have the required documentation, and is discharged because he/she cannot show the documents by the end of the third day, the claimant has obtained the job under false pretenses. Under these circumstances, the claimant would be discharged for misconduct since he/she has potentially exposed the employer to liability under IRCA and has failed to comply with a reasonable employer request, both of which injure an employer’s interests.
c. Facts: The claimant has worked twenty years for ABC Company. After a month’s layoff, the employer decided to verify status of all his employees as they returned to work. The claimant entered the country illegally and has no documentation other than a driver’s license and a Social Security card, both genuine. The employer requires the claimant to submit "something from lNS." The claimant cannot, and is terminated.
Issues: MC, A&A, IRR.
MC: Since the claimant has worked twenty years for the employer, he is a "grandfathered" employee, starting work for the employer prior to November 6, 1986. The employer may check status on rehire if he does so for all employees; in this case, he asks all employees for authorization to work, so the request is both reasonable (although unnecessary) and nondiscriminatory.
The employer may not, however, select the acceptable documentation that the employee is to submit. As long as the claimant submits documentation that is acceptable for this purpose and that 1) relates to him and 2) appears on its face to be genuine, he has complied with the document requirement. The employer may request production of the claimant’s INS documentation only if the claimant is relying on it to establish his/her work authorization. If the employer still insists upon INS documentation, despite the claimant’s reliance on other documentation, the employer request is unreasonable and the discharge is for reasons other than misconduct.
A&A: In the absence of proof of authorization to work from INS, the claimant is not available for work.
IRR: In the absence of proof of a satisfactory immigration status, the claimant is not eligible. But see 4., below, for the base period wage credits for a "grandfathered" employee.
Workload count: One.
4. Base Period Considerations
In contrast to present status determinations, which are determined by IRCA, base period status determinations are governed by the Federal Unemployment Tax Act (FUTA). INS does not routinely report on the immigration status of the claimant during the time the wages were earned; INS only reports current status but, if specifically asked, will comment on status while the wages were earned. Alien status (AL) issues under Unemployment Insurance Code Section 1264 may occur with ~y of the issues indicated in 1. through 3., above. For the examples below, presume that the only issue is usability of the claimant’s base period wages, and exclude considerations of other people’s wage credits, etc., which are monetary determinations.
1. Facts: When filing the claim, the claimant indicates in response to the base period status question that he/she does not meet any of the Section 1264 criteria at the time any of the base period wages were earned.
Issue- AL only.
Resolution: Since the claimant was admittedly not 1) lawfully admitted for permanent residence, 2) legally present for the purposes of performing services, or 3) permanently residing in the United States under color of law when the wages were earned (PRUCOL), the wages are not usable for a claim. Because the wages belong to the claimant and are potentially usable for a future disability insurance (DI)claim, the wages are not deleted; they are merely disqualified.
If a portion of the wages are usable and part are not, the unusable wages will be suppressed (code "J") for UI purposes; an AL disqualification will be issued for those wages, and a claim established upon any remaining usable wage credits. See B.7.a., Suppression of wage Credits, above.
Workload count: One. This count is in addition to count for any other disqualification, since it relates to a different period of time than a present-status determination and is a different transaction and occurrence.
b. Facts: The claimant indicates he has worked for twenty years for ABC Company, both before and after November 6, 1986. The only wages in the base period are from ABC Company. He does not qualify by being lawfully admitted for permanent residence, lawfully present for the purposes of performing services, or PRUCOL.
Resolution: Since IRCA does not prohibit the continuing employment of the "grandfathered" employee after November 6, 1986, regardless of documentation (see C., above), wage credits earned in a "grandfathered" status are an exception to the rule, and the base period wage credits are usable. This exception does not render the claimant "legal" nor does it waive document requirements for present status determinations. If only one employer is shown for the base period and the base period status is questionable, ask the claimant, "When were you hired by (the employer)?"
Workload count: One; but if no additional information is needed, none (clarification only).
c. Facts: The claimant, a legalization applicant, was also a "grandfathered" employee. He lost his status after this year’s new claim was filed and benefits had been Paid.
Issue: None with respect to the base period, unless investigation of the "grandfathered" status is required.
Resolution: It is possible to have a valid base period status and an invalid present status. Consider A&A and IRR for present status, however.
Workload count: None; clarification only, on the facts given here. There will, however, be workload count of one for the present-status determination.
Last Revised: 01/11/2022