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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41220
Experience:  I provide employment and discrimination law advice in my own practice.
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Living in Massachusetts, I am a E2 visa holder and

Customer Question

Hello, Living in Massachusetts, I am a E2 visa holder and got recently married to a U.S. citizen. I have just applied for an AOS (incl. form I-485) but won't receive my work permit before 3 to 4 months. If my work contract was to end now, what type of
unemployment compensation could I receive? Note: I don't know yet if the contract will end because of me quitting, being layer off or by mutual agreement. Thanks for your help.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you with your concerns.
Unemployment is based on how you are terminated. How long have you worked for this employer at this time? I ask because if you quit on your own, or agree to terminate (resign), OR you did not work long enough, you are NOT entitled to unemployment benefits. You are only entitled to receive unemployment if you worked long enough to obtain credit AND were terminated by the employer 'without cause' (meaning without fault on your end). All other options such as voluntary termination or termination due to fault and cause bar you from collecting benefits.
Sincerely,
Dimitry, Esq.
Customer: replied 1 year ago.
Hello Dimitri,I started working for this employer in October 2013. Is it long enough?If yes, I understand that I can only receive benefits if he fires me. In this case, does it make any difference for the employer to either fire me or have me resign or quit (i.e. would it cost them more to do one or the other)?Also, I read online that, to receive benefits, you need to "be able to work". However, since I will not have received my work permit in time, I technically will not be able to work... What would this mean for potential benefits?Best.
Expert:  Dimitry K., Esq. replied 1 year ago.
Hi, that is generally long enough--you need to work full time for a substantial period of time to seek benefits. But it does make a difference if you were fired or you quit, unemployment ONLY exists where you lose your job through no fault of your own. By quitting you are assuming the risk and costs of unemployment on yourself. If you are also unable to work (you are not yet legally permitted due to not getting the visa), you likewise won't be eligible for unemployment for that particular period of time. Hope that helps clarify!
Customer: replied 1 year ago.
OK, so to sum up:
- It's probably been long enough (I was indeed full-time).
- If I quit it won't work.I have two grey areas left:
1) Will firing me cost money to my employer?
2) You say "you are not yet legally permitted due to not getting the visa". It's note that, as I will not have received YET my employment authorization (in response to my application form I-765). Does this change anything?Thanks.
Expert:  Dimitry K., Esq. replied 1 year ago.
Hi,
Firing you without cause will cost them--the cost for unemployment insurance is partially borne by the state and partially by the employer, so they do not want to pay for unemployment benefits if they can help it.
As for your second point, no, that does not change anything--if you cannot at that point work, you cannot receive unemployment benefits. It is really that straightforward. If you claim that you could work, receive benefits, and they find out otherwise, they could pursue you for fraud, demand that you pay back what is owed, and likewise potentially even pursue criminal charges (which can even create a basis for deportation).
Sincerely,
Dimitry, Esq.
Customer: replied 1 year ago.
Thank you for all those clarifications. I have no more questions.
Expert:  Dimitry K., Esq. replied 1 year ago.
You are most welcome, truly. Glad to help!
Please let me know if I can assist you in any other way. Otherwise, if satisfied, kindly do not forget to positively rate. Thank you!
Sincerely,
Dimitry, Esq.