GUIDE SHEET 7

ALIEN STATUS

FUTA, Section (3304(a)(14)(A) stipulates that unemployment compensation shall not be payable on the basis of services performed by an alien unless the alien meets the following conditions:

1. The alien was lawfully admitted for permanent residence at the time the services were performed,

2. The alien was lawfully present for the purposes of performing the services, or

3. The alien was permanently residing in the United States under color of law (PRUCOL) at the time these services were performed (see UIPL 1-86; UIPL 1-86, Change 1, and Supplement #3 of the Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976-P.L. 94-566, and UIPL 14-91 for details on those aliens identified as being in PRUCOL status).

An alien must also be legally authorized to work in the United States at the time benefits are claimed - the latter giving rise to an availability issue.

The United States Immigration and Naturalization Service (INS) has jurisdiction over an alien's authorization to work in the United States.

Two major eligibility issues require determinations concerning aliens. The first deals with monetary eligibility. Base period wages can be allowed to establish monetary eligibility only for those services the alien performed while in an acceptable legal category. The second deals with the alien's nonmonetary eligibility, i.e. the "otherwise eligible" component of all State laws--in this instance, availability. If the alien's legal authorization has expired, he/she is considered unavailable, and the issue must be adjudicated under State law.

The SESA is responsible for determining an alien's eligibility based on the facts and evidence substantiating the alien's legal work status. Therefore, a denial of benefits to the alien based on disallowed base period wages may only be done based on a preponderance of evidence. This means that the adjudicator must obtain necessary facts and sufficient evidence to support a finding that the base period wages were earned while the alien was not in an acceptable status (totally, or in part). The adjudicator must weigh the evidence carefully and must be satisfied that the weight of evidence supports a conclusion that benefits should be denied.

Availability, as a requirement of being otherwise eligible, is applicable to all claimants, including aliens (equal treatment applies to all beneficiaries of the UI system).

BASIC QUESTIONS AND FACTORS TO CONSIDER

A. WAS THE CLAIMANT'S ALIEN STATUS VERIFIED WITH THE INS?

1. The Immigration Reform and Control Act (IRCA) requires State agencies to verify the alien's status with INS. It is critical to verify with INS the claimant's authorization to work at the time base period wages were earned and to establish current legal status to satisfy State availability requirements.

Verification is accomplished using INS' Systematic Alien Verification for Entitlement (SAVE) program. Two verification methods are available to States:

(a) Primary Verification. This is an automated query by the SESA into the INS Alien Control Index data base; and

(b) Secondary Verification. This is a manual verification process. It is used when indicated by the primary verification system ("initiate secondary verification"), when documentation provided by the alien is suspect or altered, or contains invalid alien registration numbers (A-50,000,000 to A-60,000,000 series), and when designated States are waived from using the primary verification. Secondary verification involves a more thorough search of INS files to validate the alien's legal status. (Refer to SAVE program manual for in-depth treatment of alien documentation and verification procedures.)

2. Verification with INS should confirm the documentation provided by the claimant.

3. Disallowance of an alien's base period wage credits may only be done based on a preponderance of evidence (evidence which exists that has a greater weight and is more persuasive in supporting a finding of fact). The facts and evidence obtained must come from the claimant, the INS via SAVE, and/or the employer, who may provide information to support the determination to deny the use of all, part, or none of the base period wages. Facts must be sufficiently detailed to support the determination to deny and must include:

• Dates of authorization
  
  
• Copies of original documentation
  
  
• Verification from INS (SAVE)
  
  

B. WHAT WAS THE ALIEN'S LEGAL STATUS DURING THE STATE'S BASE PERIOD?

1. The alien must provide proof that he/she was in an acceptable status as determined by the INS to work in the United States during the States' base period.

There are a number of documents issued by the INS which allow aliens to reside and work in the United States. Among them, the principal authorizing document is the Alien Registration Card (ARC), more commonly referred to as the "Green Card."

2. Monetary eligibility is based solely on wages legally earned during the base period which applies to the new initial claim. The period the alien was authorized to work must be established to determine if all, some, or none of the alien's base period wages were earned while he/she was in legal status.

3. If the alien refuses to provide requested information or documentation to establish eligibility for benefits, the issue should be resolved under the State's claim filing requirements (failure to provide requested information for establishing a claim).

C. WHAT IS CURRENT WORK STATUS OF ALIEN?

An alien's current availability for work rests with the alien's authorization to work and the period authorized. Verification is necessary to ensure that benefits are not paid beyond the expiration date of the work authorization, regardless of a valid determination of monetary eligibility.

1. In order to maintain continuing eligibility based on the availability requirement of State law, the alien must still be legally authorized to work. Expiration of legal authorization to work requires an adjudication of the alien's availability for work.

2. Meeting State availability requirements can only be determined when the expiration date of the alien's work authorization has been established. An alien is not considered available for work if his/her authorization to work legally in the United States has expired.

EXCEPTION: CANADIAN CITIZENS -- Canadian nationals filing under the Interstate Benefit Payment Plan need only satisfy Canadian availability requirements. The adjudicator must check the Canadian availability requirements to determine if the claimant is otherwise eligible.

D. ALIEN PERMANENTLY RESIDING UNDER COLOR OF LAW ("PRUCOL").

Adjudicating "PRUCOL" aliens is the most problematic of the alien status determinations. To be considered under PRUCOL, an alien must meet the requirements of a two part test: (1) the INS must know of the alien's presence and provide the alien with written assurance that enforcement of deportation is not planned; and (2) the alien must be "permanently residing" in the United States. A mere application for PRUCOL status does not convey permanence. The INS must affirmatively determine the alien's PRUCOL status.

The Immigration and Nationality Act (INA) defines permanent as "a relationship of [a] continuing or lasting nature...even though it is one that may be dissolved eventually at the instance of either of the United States or the individual...." "PRUCOL" applies to only:

1. Aliens admitted as refugees, asylees or parolees (see Sec. 207, 208 and 212(d)(5), Immigration and Nationality Act (INA)).

2. Aliens presumed to have been lawfully admitted for permanent residence although they lack documentation of their admission to the U.S. (see Supplement #3 of Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976-P.L. 94-566).

3. Aliens who, after INS review, have been granted lawful immigration status to remain in the U.S. indefinitely or are members of a class who have been authorized to remain in the U.S. indefinitely (see UIPL No.1-86, and UIPL No.1-86, Change 1).

Factfinding

A. ALIEN'S PROOF OF LEGAL AUTHORIZATION TO WORK DURING BASE PERIOD.

1. Identify documentation presented by alien as proof of authorization to work.

• Alien Registration Card (I-155), or "Green Card"
  
  
• Legal documentation furnished by INS
  
  
• Other original documentation
  
  

2. Claimant refuses to furnish documentation

• Failure to provide information may violate State's claim filing requirements
  
  

B. ALIEN STATUS VERIFIED WITH INS

1. SESA verified status via "SAVE"

• Primary verification satisfied status. INS verified documentation as valid with no "Secondary" verification required
  
  
• SESA advised via primary verification to request additional information using "Secondary" verification method
  
  
• Secondary verification required if primary indicates its necessity or alien's documentation appears suspect. INS conducts in-depth search of Alien Control Index
  
  

2. Substantiating verification required to establish legal work status

• Identifies period of legal work authorization
  
  
• Provides building of preponderance of evidence if denial is indicated (preponderance required when denying based on issue of allowable base period while not in legal work status)
  
  

C. CURRENT WORK AUTHORIZATION DURING CLAIM SERIES

1. Must be currently legally authorized to work.

• Period of legal status required to determine if an alien meets State availability requirement
  
  

2. Alien only eligible to receive benefits as long as he/she meets State "otherwise eligible" conditions, e.g., able and available, etc.

• Aliens are afforded the same treatment as all other claimants (except monetary eligibility is based on legally authorized work status)
  
  
• Lack of legal status when filing for benefits must result in denial re: A and A issue
  
  

3. Canadian Nationals filing under Interstate Benefit Payment Plan need only satisfy Canadian availability requirements.

• Obtain factfinding statement for Canadian agency
  
  
• Obtain verification from Canadian agency that alien meets Canadian availability requirements.
  
  
• Failure to meet Canadian requirements should result in denial of benefits
  
  
  

D. "PRUCOL" STATUS ESTABLISHED

1. Claimant documentation of PRUCOL status

• Copy of alien's written assurance from INS that enforcement of deportation is not planned
  
  
• Other documentation of legal status

2. INS verification of alien "permanently residing"

• INS must confirm knowledge of the alien's presence
  
  
• INS provided alien with written assurance that enforcement of deportation is not planned

• Obtain substantiating proof of "PRUCOL" status from INS via SAVE procedures
  
  
• Confirm with INS that alien granted permanent residence in status to meet UI eligibility requirements (see Supplement #3 of Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976-P.L. 94-566, and UIPL No.1-86, and UIPL No.1-86, Change 1)
  
  

HINT: Alien status must be verified with INS. If there is no documentation of verification, score Facts from Others as Not Obtained (N =0 points). If primary verification was completed and INS indicated the need for secondary verification, score Facts from Others as Inadequate (I = 5) if the SESA failed to perform the secondary verification. Note: if Facts from Others is scored "N" or "I" then Law and Policy can only be scored as Questionable.