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DACA recipients in Illinois may be eligible for state unemployment insurance benefits in light of the economic impact of the coronavirus (Covid-19) pandemic.

March 20, 2020
Minsky, McCormick & Hallagan

The ongoing Covid-19 pandemic has led to numerous business closures and layoffs in Illinois and across the U.S. as employers and local, state, and federal governments set restrictions to reduce transmission and flatten the curve.

This blog briefly and generally explains whether DACA (Deferred Action for Childhood Arrivals) recipients are eligible for unemployment insurance benefits in Illinois and its implications in the immigration context.

Illinois has the following general requirements (under normal circumstances) for requesting unemployment benefits:

1) You are unemployed through no fault of your own (a pandemic that causes your employer to close or lay you off would most likely satisfy this requirement);
2) You were paid $1,600 or more in wages during your base period for insured work;
3) You were paid at least $440 of your base period wages at any time during the base period outside the calendar quarter in which your wages were highest; and
4) You are registered to work with IDES.

Illinois also has the following other requirements for requesting unemployment benefits:

1) Properly filed weekly claim;
2) Serve one “waiting week;” and
3) Be able to work, available for work, and actively looking for work.

Source: State of Illinois; Department of Employment Security; Employment Insurance Benefits Handbook, available at: https://www2.illinois.gov/ides/individuals/UnemploymentInsurance/Pages/default.aspx

The unemployment insurance program in Illinois is administered by the Illinois Dept. of Employment Security (IDES), and therefore not subject to federal requirements about which classes of immigrants are eligible as set forth in 26 U.S.C. § 3304 (a)(14)(A).

Based on the Illinois requirements, a DACA recipient may be eligible for unemployment benefits provided that they had work authorization during the base period at issue and they maintain work authorization during the time they are receiving benefits (as part of the “able to work” requirement).

The receipt of unemployment benefits does not necessarily count against a DACA applicant under the public charge ground of inadmissibility old or new rules because it is not a means-tested benefit. Unemployment insurance benefits in Illinois are funded by tax dollars collected from Illinois employers. If you meet eligibility requirements, the benefits are paid as a matter of right. They are not based on need and are not charity or welfare. See Handbook at p. 3. Further, receipt of unemployment insurance benefits will not affect eligibility for DACA renewal.

Please note that while receiving unemployment insurance benefits does not directly count against an applicant when applying for adjustment of status or an immigrant visa, continued employment and employment history, and lack thereof, is a factor that adjudicators may consider under the public charge totality of the circumstances analysis. However, this by itself should NOT deter people from applying for unemployment benefits if they are eligible, especially in dire times of need like a pandemic. There are numerous ways such consideration can be outweighed in one’s favor based on other equities, and lapse in employment due to a pandemic should be given little to no weight in the determination of whether someone is likely to be a public charge.

Please also note that this analysis is based on eligibility requirements under normal circumstances, and do not contemplate any novel or planned stimulus or relief packages enacted at the state and/or federal level that may broaden or restrict eligibility requirements. Updated information on these will be forthcoming as they are enacted, and guidance is issued. If applying for benefits, please review all terms and conditions carefully, especially in regard to any questions about U.S. citizenship, as a false claim of U.S. citizenship is a ground of inadmissibility and deportability for which there are generally no waivers.

We at Minsky, McCormick & Hallagan, P.C. urge and thank everyone for taking precautions to reduce community spread of Covid-19. To schedule a consultation with one of our experienced attorneys, please contact us at 312-427-6163. Video and telephonic consultations are available despite our office being closed and the present Illinois order to shelter in place until at least April 7, 2020.

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