Should I apply for unemployment benefits?

If you lost your job (aka were “laid off”) or were “furloughed” (aka are temporarily not working) because of the coronavirus, or if the company you work for is permanently or temporarily shut down because of it, you qualify for weekly unemployment payments from the state in which you worked.

Should I apply for unemployment benefits if I am not a US citizen?

Yes, you can file an unemployment claim as long as you have an immigration status and are authorized to work in the US. To collect UI benefits, you must show that you are in satisfactory immigration status and authorized to work in the United States when earning the wages you used to establish your claim. You must also give proof that you are currently in satisfactory immigration status, and are authorized to work each week that you claim benefits.

My agency said that I will lose my visa if I file for unemployment. Is that true?

We have heard that some agencies are discouraging models from applying for benefits because doing so will make them lose their visa. This is likely not true.

Many agencies right now are "furloughing" (temporarily not getting models work, or temporarily closed) workers versus "laying off" or "terminating" (firing models or dropping them from their contracts). If your agency didn’t terminate you and is just not giving work right now, you are not “laid off”. Rather, you are “furloughed”. This means you should apply for benefits and you will not lose your visa. It's like hitting pause on the visa -- it doesn't extend the time on the visa, but it doesn't terminate it either. If this has happened to you, there has been no change in your immigration status.

For an O visa holder -- or any other employer-sponsored visa for that matter -- who loses their job (aka is dropped from their agency), this typically breaks the sponsorship and thus terminates the visa, even if the visa still has several month's time on it. Most employment-sponsored visas have a grace period during which time the worker can pack their bags and leave, but as soon as a worker is technically "out-of-status" they are at risk of deportation. However, the O visa is special in that it can be transferred from one employer to another relatively easily compared to other types of visas. A model on an O visa who is dropped by one agency may be able to transfer to another agency and switch the sponsor on the visa. In that case, however, the filing fees would likely have to be paid again.

Will filing for unemployment benefits make it so that I can’t get a greencard in the future? Will it make me a public charge?

We have heard that some agencies are discouraging models from applying for benefits because doing so will make them a “public charge”. This is not true.

Noncitizens may be concerned about applying for and receiving unemployment benefits and potentially subjecting themselves to the “public charge” ground of inadmissibility in light of the Department of Homeland Security’s (DHS) new and more restrictive analysis. Maybe your agency has even said this to you. This is false. A “public charge” is someone who is likely to receive public benefits in the future. If a noncitizen is found to be inadmissible as a public charge, he or she is not eligible to become a lawful permanent resident and receive a “green card.” Unemployment benefits are not one of the means tested public benefits and thus should not negatively affect a noncitizen’s immigration status or result in a public charge bar to residency or other nonimmigrant status in the future.¹

What is Unemployment Insurance?

Unemployment insurance (also known as “UI”) provides temporary cash benefits to employees who have lost their jobs. If you have worked in your state within the last 18 months and lost your job, through no fault of your own, you may be eligible for UI.

What is Pandemic Unemployment Assistance and how is it different from UI?

Pandemic Unemployment Assistance (also known as “PUA”) is a program created by the CARES ACT in the wake of the coronavirus that extends benefits to workers who are unemployed but have traditionally been ineligible for UI benefits because they are not classified as employees (e.g., self-employed workers, independent contractors, gig workers). To look at PUA eligibility, see this helpful resource. Specifically, PUA intends to:

Provide unemployment to workers who don’t traditionally qualify. The amount will be based on previous income, and will vary based on location and benefit guidelines.

Include supplemental benefits. Eligible workers will receive $600 a week in additional benefits for up to four months.

Provide extra weeks of benefits. There will be an additional 13 weeks of benefits to help those who are still unemployed after they run out of state benefits. The length of state benefits varies based on location, but the maximum is 26 weeks.

How do I file for unemployment/ PUA?

• NEW YORK: You can file a claim here.

• FLORIDA: You can file a claim here. Florida only accepts unemployment claims online. For questions, call the agency at 1-800-204-2418. Here is a helpful guide.

• CALIFORNIA: You can apply for unemployment insurance here, or by mailing or faxing the application to the Employment Development Department (Spanish version here). You may also apply by phone, but expect long wait times. If it takes you more than five business days to connect by phone, you can ask the Employment Development Department to backdate your claim to the Sunday before you started calling; just keep documentation of your attempts (like screenshots of your call log).

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  If I live in one state, but work in another state, where do I apply for benefits?

  If you live in X state but all your work in the past 18 months was in another state, file your claim in the state where you worked. If you worked in two or more states in the past 18 months, you must file your claim with one of the states where you worked, no matter where you live. You may be able to combine wages from all the states where you worked in the past 18 months. OR, you may use only the wages earned in the filing state. File your claim in a state where you worked, then that state will tell you all your filing options to receive the highest benefit amount.

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  What documentation do I need to file for unemployment/ PUA?

  You need different documentation to file for unemployment than you need to file for PUA.

* NEW YORK:

• Filing for Unemployment as an Employee: You need your Social Security number; your driver license or Motor Vehicle ID card number (if you have either one); your complete mailing address and zip code; a phone number where you can be reached from 8 am - 5 pm, Monday – Friday; your Alien Registration card number (if you are not a U.S. Citizen and have a card); names and addresses of all your employers for the last 18 months, including those in other states; employer registration number or Federal Employer Identification Number (FEIN) of your most recent employer (FEIN is on your W-2 forms); your copies of forms SF8 and SF50, if you were a federal employee; your most recent separation form (DD 214), for military service.

• Filing for Unemployment as an Independent Contractor: Please follow the advice of this guide.

* FLORIDA:

• Filing for Unemployment as an Employee: You need a Social Security number; driver’s license or State ID number; your employment for the last 18 months. Additionally, if you are one of the following, make sure you have this additional information available: Not a US Citizen: Alien Registration Number or other work authorization form; Union Member: Union Name, Hall Number, and Phone Number

• Filing for Unemployment as an Independent Contractor: Florida has not yet released guidance.

* CALIFORNIA:

• Filing for Unemployment as an Employee: Here is a checklist of all the information you’ll need to apply.

• Filing for Unemployment as an Independent Contractor: If you are an independent contractor, you should list yourself as your last employer.

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  When should I file my claim?

  * NEW YORK: You should file your UI claim in the first week you worked less than four days or earned less than $504. If you worked four or more days or earned more than $504, you should file the following week.

* FLORIDA: Within one week of becoming unemployed, you should begin the claims process to receive your benefits. The date your application is finished determines when you will begin receiving benefits. Claims always begin with the Sunday prior to the completion of the application. For example, an application completed on Wednesday will take effect on the Sunday before that Wednesday.

* CALIFORNIA: You should file your UI claim in the first week that you lose your job or have your hours reduced. Your claim begins on the Sunday of the week you submitted your application.

Should I file for unemployment as an independent contractor or as an employee?

* NEW YORK: In New York, we are encouraging models to file for unemployment as an EMPLOYEE. This is because N.Y. Labor Law § 511(1)(b)(3) classifies “professional models” as employees for the purposes of Unemployment Insurance. Further, New York courts have consistently and repeatedly held that models are employees for purposes of unemployment insurance. It does not matter if you signed a contract that says you are an independent contractor, that is not a be-all-end-all final word on the matter. You can still be considered an employee for the purposes of unemployment insurance². We believe this is the fastest way for you to get benefits.

If you choose to file as an independent contractor, you must apply for your state’s unemployment insurance and get rejected before you apply for PUA. You cannot apply for PUA until you have been determined ineligible for your state unemployment benefits. This will take longer than if you apply for regular UI.

²See e.g., In re Claim of Chopik, 145 A.D.2d 747, 535 N.Y.S.2d 268 (App. Div. 3rd Dept. 1988); In re Claim of Caufield-Ori, 233 A.D.2d 558, 649 N.Y.S.2d 512 (App. Div. 3rd Dept. 1996); Matter of Waggoneer (Preston Leasing Corp.—Commissioner of Labor), 137 A.D.3d 1380 (App. Div. 3rd Dept. 2016).

* FLORIDA: In Florida, we do not have an opinion on whether you should file as an employee or independent contractor as there is not a large amount of case law.

* CALIFORNIA: In California, we are encouraging models to file for unemployment as an EMPLOYEE. This is because due to the passage of Assembly Bill 5, models are likely considered employees under the “ABC” Test. Further, California courts have previously held that models are employees for purposes of unemployment insurance.³ It does not matter if you signed a contract that says you are an independent contractor, that is not a be-all-end-all final word on the matter. You can still be considered an employee for the purposes of unemployment insurance. We believe this is the fastest way for you to get benefits.

If you choose to file as an independent contractor, you must apply for your state’s unemployment insurance and get rejected before you apply for PUA. You cannot apply for PUA until you have been determined ineligible for your state unemployment benefits. This will take longer than if you apply for regular UI.

³See e.g., Zaremba v. Miller, 113 Cal. App. 3d Supp. 1, 5, 169 Cal. Rptr. 688, 689 (App. Dept. Super Ct.1980) (classifying a photography model as an employee rather than an independent contractor even though she only worked two hours for a photographer, focusing on the photographer’s control over the work.

If I file as an employee, who should I list as my employer?

If you file as an employee, list your agency as your employer.

Why is my agency telling me I should file as an independent contractor then?

The reason they are telling you to file this way varies from state to state. In some states, case law might indicate that you are an independent contractor. In other states -- where case law and labor law indicates that models are employees, however -- agencies may be encouraging you to file as an independent contractor because they are illegally misclassifying you. The largest incentive for misclassifying workers is that employers are not required to pay Social Security and unemployment insurance (UI) taxes for independent contractors. These tax savings, as well as savings from income and Medicare taxes results in employers saving between 20 to 40 percent on labor costs.⁴ What does this look like? A 2013 report from the Treasury Inspector General for Tax Administration concluded that employers can save an approximate average of $3,710 per employee earning an annual income of $43,007 when they misclassify the employee as an independent contractor.⁵

⁴“Statement of Seth D. Harris Deputy Secretary U.S. Department of Labor Before the Committee on Health, Education, Labor, and Pensions U.S. Senate.” U.S. Senate. Committee on Health, Education, Labor, and Pensions, U.S. Department of Labor, June 17, 2010. Retrieved from http://www.dol.gov/_sec/newsletter/2010/20100617-2.htm

⁵See e.g., Employers Do Not Always Follow Internal Revenue Service Worker Determination Rulings.” Treasury Inspector General for Tax Administration, June 14, 2013. Retrieved from http://www.treasury.gov/tigta/auditreports/2013reports/201330058fr.pdf.

If I am approved, when can I expect my first payment?

* NEW YORK: If you applied for Unemployment Insurance online, you were asked whether you wished to receive your benefits by direct deposit or debit card. If you applied over the phone, you will receive your benefits via debit card. New York no longer issues benefits by check.

* FLORIDA: If you applied for benefits, you can either receive them by direct deposit or debit card. If you want to use direct deposit, you must provide your bank account number and routing number. Alternatively, you can request a Reemployment Assistance debit card. Benefit payment options can be changed when you are requesting your weeks. Login to your CONNECT account and select “View and Maintain Account Information” on the left-hand navigation menu.

* CALIFORNIA: California issues benefit payments for unemployment insurance claims using the EDD Visa Debit Card. Once your first benefit payment is issued, Bank of America will mail your card and additional information within five days. You can activate it online here or by calling 1-866-692-9374 (US) or 1-423-262-1650 (outside US). If you prefer direct deposits, you can set up a one-time or recurring direct deposit transfer to the financial institution of your choice at no cost to you. Visit here or call Bank of America Debit Card Customer Service at the phone number on the back of your card.

How much money will I get if my unemployment claim is approved?

* NEW YORK: If you are approved as an employee New York determines your weekly unemployment benefit amount by dividing your earnings for the highest paid quarter of the base period by 26, up to a maximum of $504 per week.

• If you are approved as an independent contractor you are eligible to receive the same amount of money as you would be entitled to if you were filing under your state’s UI. Unlike the state UI system, however, the PUA has a higher minimum payment at the low end. The minimum payment under New York UI is $104. In contrast, the minimum benefit under PUA is between $172 and $182. Basically, you can get the same maximum payment with either, but your minimum payment for PUA is higher than the minimum payment for UI.

* FLORIDA:

• If you are approved as an employee: The state offers a maximum of $275 a week — based on your earnings — for up to 12 weeks. An additional week is added for every 0.5 percent increase in the state unemployment rate above 5 percent. The maximum is 23 weeks when the unemployment rate gets above 10.5 percent.

• If you are approved as an independent contractor you are eligible to receive the same amount of money as you would be entitled to if you were filing under your state’s UI. The minimum payment under Florida UI is $32. The minimum payment under PUA will be half of Florida’s average weekly UI payment, a number that we don’t currently have.

* CALIFORNIA:

• If you are approved as an employee:The California Employment Development Department (EDD) determines your weekly benefit amount by dividing your earnings for the highest paid quarter of the base period by 26, up to a maximum of $450 per week.

• If you are approved as an independent contractor you are eligible to receive the same amount of money as you would be entitled to if you were filing under your state’s UI. Unlike the state UI system, however, the PUA has a higher minimum payment at the low end. The minimum payment under state UI is $40. The minimum payment under PUA will be half of California’s average weekly UI payment, a number that we don’t currently have.

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  What should I do if I get a letter saying my benefits were miscalculated or that the DOL thinks I was wrongly given benefits?

  Please contact our Support line (support@modelalliance.org) if this happens. Sometimes miscalculations do happen if you failed to file correctly or misrepresented your unemployment situation, but other times the DOL is incorrect in understanding models legal classification/ agency relationship and inappropriately determines that a model owes benefits. In this latter scenario, we have connect models with resources and helped successfully challenge these letters and win determinations that they do not owe money.

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  I’ve received an email saying that if I file for unemployment because I am currently “furloughed”, the agency will terminate me. Is this legal?

  No. This is illegal and can be reported to your state’s unemployment agency as retaliation.

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  Questions?

  If you have questions, please visit modelalliance.org/support.

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Disclaimer: The information provided on this page does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this page are for general informational purposes only.