On March 14, 2022, VOLS Staff Attorney, Victoria Roseman, testified before the NYC Council Immigration Committee at their preliminary budget hearing. Our testimony highlighted the lack of assistance and barriers that immigrant workers face when dealing with unemployment insurance (UI). VOLS’ ability to leverage our intersection of immigration and UI law to assist non-U.S. citizen claimants navigate these issues has been instrumental in assisting claimants in need of legal support. We urge the City to fund organizations like VOLS, that are focused and equipped to help non-U.S. citizen workers navigate their legal disputes and obtain the benefits they deserve. Victoria Roseman’s testimony is below:
New York City Council Committee on Immigration
SUBJECT: Preliminary Budget Hearings – Immigration
Good afternoon and thank you for this opportunity. My name is Victoria Roseman and I’m a staff attorney at Volunteers of Legal Service (VOLS) in the Unemployed Worker’s Project. VOLS was established in 1984 and our purpose is to leverage private attorneys to provide free legal services to low-income New Yorkers to help fill the justice gap. The VOLS Unemployed Worker’s Project was re-launched in 2020 in response to the COVID-19 pandemic. Since the start of the pandemic, VOLS has worked directly with unemployment insurance claimants to fight for their benefits, navigate the Department of Labor’s systems and advocate for fair determinations from the Department of Labor.
While VOLS has assisted hundreds of New Yorkers in their claim for benefits, it’s clear that one particular group has more difficulty: non-U.S. citizen workers. Based on estimates drawn from 2018 US Census data, the Center for Migration Studies (CMS) estimates that 1.8 million immigrants work in jobs in the “essential businesses” identified by New York State (New York State 2020)(Citation). In particular, immigrants comprise about one third of healthcare sector workers in the state, 47 percent of transportation workers (excluding airlines) including buses, trains and vehicles for hire, and two-thirds of home health care workers and aides for the elderly (citation). It is undeniable that immigrant workers kept New York moving forward during the pandemic, yet received little to no assistance themselves when it was needed most. With our background in the intersection of immigration law and unemployment insurance law, and our connections to immigrants’ rights organizations, immigrant workers need, and turn to, places like VOLS to figure out their options during times of uncertainty.
The unemployment insurance system pre-COVID was not built to assist non-citizen workers. State benefits, also called Unemployment Insurance Benefits, have stringent requirements in order to qualify: claimants must provide the Department of Labor with W-2 working papers, months of demonstrable work history, reach earning thresholds and perhaps the most daunting – the DOL will call the applicant’s employer, who must verify all information the applicant provided. Without this documentation or acquiescence, applicants cannot collect benefits. Federal Unemployment Insurance Benefits, called Pandemic Unemployment Assistance, opened the door for many claimants who were precluded from collecting, however, these benefits still required proof of work authorization and proof of wages. These barriers precluded immigrants from obtaining benefits for survival and left many with a tough choice: try to find work during the global pandemic, or be unemployed without financial assistance.
In addition to the legislative exclusion of immigrant workers from UI benefits, it’s relevant to note that applying for benefits is not immigrant-friendly in and of itself. Language access issues plague the DoL’s forms, and without in-person locations and little phone support available, it’s nearly impossible to reach the DoL for assistance. Questions are framed in a confusing format, even for native English speakers. By law, the DoL’s forms are supposed to be translated into other languages, including Spanish, traditional Chinese, Russian, Haitian-Creole, Bengali, and Korean. However, many notices and documents are still not available in any language other than English. The DoL states on its website that other documents can be translated into other languages, but fails to specify which documents, and in which languages. The DoL’s official “if nothing else, then X” option is to suggest that claimants utilize Google Translate to review DoL information in other languages – of course, with the caveat the translation may not be “exact.” At VOLS, we understand the importance of employing trained interpreters and translators as we help Limited-English Proficient (LEP) workers navigate these systems or troubleshoot when reaching the DOL appears impossible or futile.
These language access issues continue post-application as claimants are required to certify weekly for benefits. Though the certification questions remained essentially the same throughout the pandemic, they’re not built to allow a claimant to provide any context or any more information aside from a binary “yes” or “no.” These questions, even for native English speakers, can be confusing – one example is the question, “How many days were you not ready, willing and able to work?” Well, what exactly does it mean to be ready, willing and able to work? How can anyone, during an ongoing pandemic, be ready, willing and able to work? Does ready mean immediately? Does willing to work mean work in any job? Does able mean physically able, or something else? It’s obvious these nuances can confuse claimants, especially if these questions are translated and do not hold their exact meaning. Without adequate language access measures, the DoL’s systems set up immigrant claimants for failure. VOLS, alongside other legal services organizations, has pushed the DOL to engage in more language access programs and to make the entire system more accessible to immigrants through FOIL requests and engagement with DOL representatives.
Then of course, there are situations in which a claimant received benefits they were not entitled to and now owes the Department of Labor those benefits back. Notices of overpayment are scary – they discuss collections, a large sum of money owed and of course, little recourse. These notices (and really, the default for all notices unless otherwise indicated by the claimant, and even then still) are in English, and utilize a good amount of legalese. In such instances, claimants can either request a hearing – a legal proceeding where once again language access may make it more difficult for them to meaningfully participate – or contact collections and enter, at best, a 36-month repayment plan. The average claimant receives $300 in benefits weekly, plus the federal supplement – many of these overpayments are as much as 20, $30,000. Even if an immigrant claimant was able to obtain this relief, chances are, they were now deemed to be overpaid. VOLS recently successfully represented several claimants with immigration-related overpayment issues in hearings and were able to absolve our clients of tens of thousands of alleged overpayments. Understanding the intersection of immigration law and UI law was critical at these hearings; our work is imperative in protecting the rights of immigrant workers.
I would be remiss not to mention that the Excluded Workers Fund (EWF), the landmark measure by NYS to assist immigrant workers. This fund put life-changing money in the pockets of those precluded from almost 18 months of benefits and relief. IWe continue to advocate for the renewal of this fund, especially in light of how quickly the fund ran out and the application closed. At the Unemployed Worker’s Project, we spent months gearing up for the application to be released, set up clinics to help potential claimants apply and worked closely with Community Based Organizations (CBOs) to spread the word. The Fund ran out in less than two months – much faster than anticipated—and thousands of immigrant workers were shut out and remain desperately in need of the benefits for which they are eligible
It’s essential to fund legal services organizations, like VOLS, who assist immigrants with not only immigration law issues, but other legal issues, like immigrant workers’ rights and children’s law issues. VOLS not only provides direct services to immigrants, but also advocates on a larger scale to the DoL to fix these systems that simply don’t work for most claimants, much less immigrant, LEP claimants. It’s imperative we continue to push for a safety net for immigrant workers, who are too often pushed out of traditional forms of relief.
To watch the video of the hearing and VOLS’ testimony, click here. Victoria’s Testimony Begins at the 2:57:14 mark.