FAQ: Unemployment benefits for O and P visas holders

Last updated September 15, 2020, 4:25 PM EDT

Disclaimer: At CoveyLaw our expertise is with matters of U.S. immigration and nationality. We cannot guarantee that the acceptance of unemployment benefits will not impact future immigration filings or consular processing. Please talk to your attorney about your specific situation in order to decide whether seeking or accepting unemployment benefits is advisable.

This is what we know…

The COVID-19 pandemic is having a huge impact on the U.S. economy, and many people are unable to work. If you are a foreign national with nonimmigrant status in the U.S., and you find yourself unemployed or underemployed, you may be curious about whether you are eligible for U.S. unemployment benefits. Whether or not you should consider taking advantage of unemployment benefits depends on several factors, including your visa classification and what steps you need to take to maintain your legal status in the U.S. In light of the COVID-19 pandemic, and the resulting cancellations of most public performances, many of our performing arts clients are asking us for information about their eligibility for U.S. unemployment benefits. This is an evolving topic, and there are still some unknown factors due to the ever-changing nature of this crisis.

Would seeking unemployment benefits put me at risk under the new “public charge” rules?

A few months ago, the U.S. government created some new rules that make it easier for them to deny visas to people who have used certain public benefits in the U.S. in the past, or who appear likely to use them in the future. Because of this rule change, many people have been asking whether collecting unemployment benefits would count as a negative factor in the future when they try to get visas. The good news is that the answer is “no” under the USCIS test. For USCIS’s purposes, unemployment does not count as a “public charge” benefit, so it should not affect a future green card case, nor should it affect a pending change of status or extension of stay petition, in terms of USCIS’s assessment of whether you are likely to become a “public charge” (i.e., reliant on public benefits). The bad news is that under the more subjective Department of State rules, a consular officer has the right to deny a visa to an artist who has received unemployment benefits.

Can people who are not U.S. citizens receive unemployment benefits in the U.S.?

If you have a Social Security number, filed a U.S. federal individual tax return for 2018 and/or 2019, and did not file that return as a “non-resident alien,” you might be eligible for unemployment benefits.

Can freelancers receive unemployment benefits in the U.S.?

Historically, the U.S. unemployment system did not help freelancers, so most musicians (at least those who are not in regular gigs, like orchestras) were not eligible for unemployment when work dried up. However, the recently passed CARES Act, allows some freelancers to collect unemployment if they have lost some or all of their work. Again, it is important to consider the terms of your work authorized status, and wherever possible it is advisable to continue working and not collect unemployment. If you have a Social Security number, and have not filed a tax return as a “non-resident alien,” it is worth researching whether you are eligible for unemployment benefits, and whether doing so would be a violation of your visa.

Would seeking unemployment benefits be a violation of my visa?

Probably, but not necessarily. This is a little complex: P and O visa holders are issued their visas to allow them to do specific work in the U.S. If you fail to do that work, the government generally sees it as a violation of your visa, called a “failure to maintain status.” If you fail to maintain your status, this could remain on your record forever, and could make it difficult to get visas, green cards, and ESTA. The problem with seeking unemployment is that you are telling the government that you are not working, which strongly suggests that you are “failing to maintain your status.” But there are some loopholes, so you need to read this carefully:

For O-1 visa holders:

If you lose your job while on an O-1, you technically may have up to a 60-day grace period in which you can find other work, and it might be okay for you to collect unemployment during those 60 days. The catch is that at the end of the 60 days you must discontinue the unemployment benefits, and depending on your specific situation, either (1) have some new work starting, (2) have a new visa petition filed for you, or (3) depart the U.S. Given these uncertainties and limitations, we advise against applying for unemployment if at all possible, unless you can find some way to continue to do some work. Please talk to your attorney about your specific situation in order to decide whether seeking or accepting unemployment benefits is advisable.

For O-2 and P visa holders:

The 60-day grace period that O-1 holders enjoy is not available to O-2 or P visa holders. O-2 and P visa holders must maintain some degree of work, even if they seek unemployment benefits. In the event that USCIS or a consular officer wants proof of maintenance of status down the line, you will want to be able to produce records that you were still working. Given these uncertainties and limitations, we advise against applying for unemployment if at all possible, unless you can find some way to continue to do some work.

For other kind of visa holders:

We are talking about P and O visas here. It may be possible for the holders of other kinds of employment visas to accept unemployment benefits and still maintain your status.

How much work do I need to do to maintain my status?

If your visa was arranged through a specific employer, and you are only allowed to work for that employer, then falling to maintain your contracted employment with that employer would be a failure to maintain status. If, however, your visa was arranged to allow you to work with multiple employers, or arrange engagements through an agent, then the rules are much less strict. If you can get a contract (any contract) to do a weekly online performance, it’s hard to imagine how that would not be considered maintaining your status. (Remember to keep records of those performances, because in the future you may need those records to prove that you maintained your status!)

Will I get to collect a “stimulus check,” and if I do, will it put me at “public charge” risk?

If you are considered a U.S. resident for tax purposes and you filed U.S. taxes in 2018 and/or 2019 with a Social Security Number (SSN), you may be eligible for a stimulus check. Receiving stimulus money should not affect a future public charge determination.