Financial Benefits for Laid-off Foreign Workers: A Crazy Quilt

By David North on April 27, 2020

Topic Page: Covid-19 and Immigration

Do aliens who have been financially hurt by the virus-inspired recession get government benefits?

The broad answer is that some do legitimately, some others may get away with marginal claims, and others will not receive them. It is a crazy quilt of different federal programs, different state programs, and differing immigration categories all jumbled together. There is a lot of fuzziness, as the federal and state governments hurry to put complex new programs in place, and to speed the money to residents of the United States.

And there are precious few indications that, in operation, much attention will be paid to some of the more questionable applications from aliens. The written material on most of these programs skips over the question of alien eligibility using such concepts as "being legally entitled to work in the U.S." or picking up already used IRS definitions, such as possessing a Social Security number or not being a nonresident alien. The website of law firm Smith, Gambrell & Russell, LLP, offers this explanation:

At present, it is not clear whether foreign national employees with work visas are eligible for the stimulus rebate checks. The CARES Act specifically excludes 'any nonresident alien' from the definition of 'eligible individual.' Some have concluded that any foreign national who does not have a green card is not eligible, however, the CARES Act does not actually define the term "nonresident alien".

The term 'nonresident alien' is notably defined by the Internal Revenue Service (IRS), rather than by an immigration statute. The IRS states that a non-U.S. citizen is considered a nonresident alien unless he or she meets one of two tests: the green card test or the substantial presence test. A foreign national is generally considered a resident alien for tax purposes if he or she meets the substantial presence test for the calendar year, having been physically present in the United States for a designated minimum threshold period. [Emphasis in original.]

It is fairly typical of our government to allow a non-migration agency, the IRS, to make the rules on these migration-related matters; and, of course, nobody has less interest in enforcing the immigration law than the IRS.

Without attempting to offer complete descriptions of the various combinations of situations, it is useful to sketch the generosity of these programs to aliens in a range from least to most:

The toughest of these programs is administered by Betsy DeVos's Department of Education; some $6 billion have been set aside for universities and their students adversely affected by the virus; it includes bans on benefits to DACA recipients and illegal aliens as we will spell out subsequently.

Then there is, in the middling range of benefits for some aliens and not others, such as the payment of $1,200 checks by the IRS; the provisions in the various unemployment insurance programs; the SNAP (food stamps) program; and the new Paid Sick Leave and Expanded Family and Medical Leave programs, under the new Families First Coronavirus Response Act, with the most generous programs, including full benefits for clearly illegal aliens, being California's Disability Insurance program, and its side-kick, California's Family Leave program.

Some of these programs are new or obscure, or both, and we will briefly describe them as we go along.

While the DoE program for impacted students is for students per se, not workers, most international students are at least part-time workers, and this program is clearly the least tolerant of alien applicants. As Law360 reports from behind a partial paywall, more than $6 billion has been set aside for universities and their students whose lives and scholastic careers have been upset by the virus; this money can be used by the universities to offer benefits to the disrupted students, but the article makes it clear that "under DOE policy, only U.S. citizens and some green card holders can qualify for federal financial aid."

Thus no funds for either DACA recipients or for the undocumented who are treated quite differently by some state governments, including letting some of the illegal aliens pay tuition at in-state rates, despite their illegal presence in our country.

The Middling Programs. Most of the programs in the middle of this spectrum — from lots of enforcement through none — offer benefits for some aliens and not others, and I suspect will be administered in such a way that a scheming alien with white collar skills can secure benefits that she might not be entitled to. Others may apply with no evil intent, and no eligibility, and score anyway.

A good example are those disaster relief checks for $1,200 for adults and $500 for their kids that have already started arriving in some H-1B households, according to this report. The criteria for getting these checks — sent out by the IRS — seems to be the presence of an SSN, and the filing of 2018 and/or 2019 income tax returns showing an income of under $75,000 for individuals and $150,000 for couples. We have argued, I guess in vain, that the SSNs of the tax filers should be checked to make sure that the SSNs used were issued to the people filing the 1040s; all too often illegal aliens buy SSNs that were issued to others, and government agencies do not take the time to check their validity.

Some nonimmigrant workers in the United States appear to be legitimately entitled to unemployment insurance payments — some of which are much more generous than they were a couple of months ago. Clearly aliens in visa categories that do not involve a tie to an employer are free to work anywhere in the country, at any job, and can receive unemployment insurance. These categories include, among others, OPT workers, H-4 people (relatives of H-1Bs), asylees, refugees, and those in TPS status.

Laid off H-1B workers, who are only eligible to work for H-1B employers, may not get benefits for their lack of complete employability. This is not because of some federal ruling against these workers, it is simply because one needs to be able to work to secure unemployment benefits, generally.

I have seen nothing about any rule changes with the SNAP (food stamps) program caused by the virus impacts, but the long-standing rules are that no benefits can go to illegal aliens; however, benefits not only can go to mixed-status families, but under some circumstances, as we have written repeatedly, a mixed-status family can secure benefits when an otherwise identical family (in terms of members and income levels) full of citizens cannot.

One of the stimulus programs, set up by the Families First Coronavirus Response Act, is a new and indirect federal program that repays corporations, via tax breaks, for providing paid sick leave and expanded family and medical leave to their workers. The program is administered by a federal agency not usually associated with such activities, the Wage Hour Division of the U. S Department of Labor. (In two of my three stints with the federal government, I worked closely with this organization, and always found it to be a solid, progressive outfit.)

Perhaps because this is an indirect program (unlike unemployment insurance, which deals directly with ex-workers), it is not very precise about who is eligible for benefits in migration terms; clearly those to benefit have to be, or to have been, workers for the corporations involved. For more on the benefits, see the Wage and Hour Division's "Families First Coronavirus Response Act: Questions and Answers". I could find nothing in that document that dealt with alien eligibility.

And in California, there is the Disability Insurance (DI) program and its recent sibling, Family Leave; in both cases: "Citizenship and immigration status do not affect eligibility," so not only are illegal aliens and DACA recipients eligible, so too must be all other categories of alien workers.

DI or TDI (temporary disability insurance) programs are confined to five states: California, Hawaii, New Jersey, New York, and Rhode Island, as well as Puerto Rico. Essentially, while unemployment insurance programs grant workers benefits when they are laid off, TDI grants similar benefits while the workers are sick. Some of these programs are worker funded, and others are funded by both the workers and their employers.

In California's Family Leave program, run by the same entity that manages the state's DI program, workers (including aliens) can get benefits while taking care of ailing family members. Several other states have similar programs and I do not know how they handle the alienage variable.