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U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210

CLASSIFICATION

UI

CORRESPONDENCE SYMBOL

TEURL

ISSUE DATE

December 2, 1988

RESCISSIONS

 

EXPIRATION DATE

November 30, 1989

DIRECTIVE

:

UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 06-89

 

TO

:

ALL STATE EMPLOYMENT SECURITY AGENCIES

 

FROM

:

DONALD J. KULICK
Administrator
for Regional Management

 

SUBJECT

:

Provisions of the Foreign Relations Authorization Act (P.L. 100-204), Which Affect the Federal-State Unemployment Compensation Program

  1. Purpose. To advise State, agencies of Section 902 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, which establishes another class of aliens eligible for temaorary resident status.

  2. References. Section 902 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (P.L. 100-204); Section 245A of the Immigration and Nationality Act; and UIPLs 1-86, 12-87, 12-87, Chanae 1 and 11-88.

  3. Background. On December 22, 1987, the President signed into law the Foreign Relations Authorization Act (FRAA) which contains provisions affecting the unemployment compensation (UC) program. Section 902, FRAA, establishes another class of aliens who are eligible to apply for temporary residence status as provided by the Immigration and Nationality Act (INA).  The Immigration Reform and Control Act of 1986 (IRCA) added a new Section 245A to the INA to authorize the adjustment of status of certain aliens.  Section 245A established a new category, that of "lawfully admitted for temporary residence."  Section 902, FRAA, does not amend IRCA or INA, but does add a new class of aliens eligible for the lawfully admitted for temporary residence status to the classes of aliens authorized by Section 245A.  FRAA also makes specific provisions of Section 245A applicable to the Section 902 class.

    This new class of aliens includes any alien who is a national of a foreign country whose nationals were provided (or allowed to continue in) "extended voluntary departure" (EVD) by the Attorney General on the basis of a nationality qroup determination at any time during the 5-year period ending on November 1, 1987.  In this 5-year period EVD was provided to the nationals of Poland, Ethiopia, Afghanistan, and Uganda.

    FRAA extends most of the same benefits, conditions and responsibilities to qualifying applicants as to those applicants qualifying under Section 245A, INA.  However, the eligibility requirements and application period under FRAA differ from those under Section 245A, INA.

  4. Adjustment of Status. Section 902(a), FRAA, establishes the criteria for eligibility for adjustment of status.  The Section applies to any alien who is a national of a foreign country whose nationals were provided (or allowed to continue in) "extended voluntary departure" by the Attorney General on the basis of a nationality group determination at any time during the 5-year period ending on November 1, 1987.  The status of an alien shall be adjusted to lawfully admitted for temporary residence if the alien:

    1. applies for such adjustment within two years of the date of the enactment of FRAA (that is, by December 22, 1989);

    2. establishes that the alien entered the United States before July 21, 1984, and has resided continuously in the United States since that date, and through December 22, 1987;

    3. establishes continuous physical presence in the United States (other than brief, casual, and innocent absences) since December 22, 1987;

    4. in the case of an alien who entered the United States as a nonimmigrant before July 21, 1984, establishes that the alien's period of authorized stay as a nonimmigrant expired not later than six months after such date through the passage of time or the alien applied for asylum before Julv 21, 1984; and

    5. meets the requirements of Section 245A(a)(4), INA.

  5. Applicable Subsections of Section 245A of INA. Section 902(b), FRAA, provides that subsections (b), (c)(6), (d), (f), (g), (h), and (i) of Section 245A, INA, apply to the aliens whose status is adjusted under Section 902(a).  These subsections apply in the same manner as they apply to aliens provided lawful temporary resident status under Section 245A(a), INA.

    Subsection 245A(b), INA, specifies certain terms and conditions of temporary resident status and prescribes the conditions for subsequent adjustment to "lawfully admitted for permanent residence."  It allows an alien, after 18 months of temporary resident status, one year to apply for an adjustment of status to that of lawfully admitted for permanent residence.  Paraqraph (1) of subsection 245A(b) lists the conditions an alien must meet to be eligible for subsequent adjustment to that of an alien admitted for permanent residence.  Paragraph (2) of subsection 245A(b) specifies the conditions under which the Attorney General shall provide for termination of temporary resident status.

    Paragraph (3) of subsection 245A(b) provides that an alien with temporary resident status shall be granted "authorization to engage in employment in the United States and be provided with an 'employment authorized' endorsement or other appropriate work permit."  Paragraph (3) also lists the conditions for authorization to travel abroad.

    Paragraph (1) of subsection 245(g) requires the Attornev General to publish regulations necessary to carry out Section 245A. An interim rule implementing Section 902, FRAA, was published and became effective March 21, 1985, at 53 FR 9274.  This interim rule created a new regulatory Section 245a.4 of 8 CFR Part 245a entitled "Adjustment to Lawful Resident Status of Certain Nationals of Countries for Which Extended Voluntary Departure has been made Available."  Section 245a.4(b)(14) of this Part lists the provisions regarding employment and travel authorization for aliens applying for adjustment of status to lawfully admitted for temporary residence status as well as those granted such status under Section 902, FRAA.  Form I-688A, Employment Authorization, is issued to applicants.  Form I-688, Temporary Resident Card, is issued to an alien granted temporary resident status.

  6. Impact on Federal UC Requirements. For the UC program there are two separate aspects to alien eligibility: (A) non-monetary eligibility during the benefit year and (B) monetary eligibility during the base period.

    1. Availability for Work.  When an individual is granted work authorization under these new provisions the individual is lawfully present for purposes of performing services and may be considered legally available for work.  The individual must have dated documentation (I-688A or I-688) from INS substantiating the work authorization.  An alien with INS issued work authorization may be eligible for unemployment compensation under the State law if the alien is also able to work, is otherwise available for work, is unemployed, and is otherwise entitled to benefits under the State law, including monetary entitlement.

    2. Section 3304(a)(14), FUTA.  Even though an individual has work authorization, the requirements of Section 3304(a)(14), FUTA, still apply.  The State must determine if an alien has established monetary eligibility during the base period. FUTA prescribes the conditions under which benefits may be paid based on services performed by an alien who is in proper status "at the time services were performed."  Benefits based on services performed while an alien is lawfully admitted for temporary residence or is granted work authorization pending a ruling on his/her application, may be paid because the work authorization grants an alien the status of being lawfully present for purposes of performing services.

    Although Section 902 was effective December 22, 1987, INS did not start accepting applications for lawful temporary resident status until March 21, 1988.  INS could have accepted applications for, and granted lawful temporary resident status, as earlv as December 22, 1987, if it had been able to set up its application process by that date.  Therefore, States may, if State law so allows, pay benefits based on wages from otherwise covered services performed on or after December 22, 1987, by aliens granted lawful temporary resident status under Section 902.  This is optional for each State and not a requirement for conformity.  The retroactive use of an alien's wages to December 22, 1987, is permitted only if the alien is granted lawful temporary resident status.  However, to use such retroactive wages in computing monetary entitlement, the alien must present the agency with documentation of the lawful temporary resident status, i.e., temporary resident card (INS Form I-688).

    A distinction exists between INS Form I-688, which is issued to an alien granted lawful temporary resident status and includes work authorization, and INS Form I-688A which is the work authorization issued to an applicant for legalization along with the application fee receipt.  The work authorization on INS Form I-688A is effective on the date stated on the form itself, and may never be given retroactive effect for any purpose.  The retroactive use of an alien's wages for computing monetary entitlement, as discussed above, is permitted only in connection with the granting of lawful temporary resident status and the issuance of INS Form I-688.

    When an alien is granted lawful temporary resident status under Section 902, the alien falls within the second category of Section 3304(a)(14), FUTA -- lawfully present for purposes of performing such services -- and each State, at its option, may treat such status as retroactive as far back as December 22, 1987, for the purpose of computing monetary eligibility.  Therefore, if the State law includes the second category, and the State construes the State law provision as including such an alien, then wages paid to the alien for otherwise covered services performed on or after December 22, 1987, or such later date as the State construes its law may be used to compute monetary eliqibility.  If a State decides to use such wages in computing monetary eligibility, it must first examine its State law to determine if such retroactive use of an alien's wages is permissible.

  7. Action Reauired. SESAs should notify the appropriate staff of the provisions of P. L. 100-204 which affect the UC program and this program letter.

  8. Inquiries. Inquiries should be directed to your Regional Office.

  9. Attachments. 

    1. Text of Section 902 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (P.L. 100-204).

    2. Section 245A of the Immigration and Nationality Act.

    3. Copy of INS Interim Final Rule, 8 CFR 245a.4.