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Unemployment Benefits as a Non-Citizen

Under California Unemployment Insurance Code § 1264(a)(1), a non-citizen may be able to obtain unemployment insurance benefits if they worked under either of these three statuses during their base period: (1) lawfully admitted for permanent residence at the time the services were performed; (2) was lawfully present for purposes of performing the services; or (3) was permanently residing in the United States under color of law at the time the services were performed.” (side note: § 1264(a)(2) explicitly covers DACA recipients). 

The language in UIC § 1264(a)(1) mirrors the exact language in the Federal Unemployment Tax Act under 26 U.S.C. §3304(a)(14)(A). The Department of Labor has provided guidance on how to interpret §3304(a)(14)(A), which may be found here. According to the Department of Labor, non-citizens “lawfully present for purposes of performing the services . . includes other aliens who are permitted to work by the INS [USCIS] regardless of their status in the United States.  The INS has broad discretionary authority to permit an alien to work ‘for humanitarian reasons’ pending determination of the alien’s status.  Beneficiaries of this discretion may range from applicants for asylum or suspension of deportation to deportable or excludable aliens.” 

Under UIC  § 1264(c), EDD must show that an individual is ineligible based on their immigration status by a “preponderance of the evidence” (>51%). EDD may be so overwhelmed right now that they are not pursuing denials aggressively because it would require an evidentiary showing. Either way, it is up to EDD to sort it out, not the applicant.

Finally, even if an individual has no status or employment authorization, they should be encouraged to apply for State Disability Insurance (SDI) benefits, which are not subject to immigration status.

We understand you have questions, and we are doing everything we can to inform ourselves of the changes happening daily. We are working to provide you with the most up to date information possible, should you have any questions please feel free to contact us.

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