From Casetext: Smarter Legal Research

Matter of Diamond

Appellate Division of the Supreme Court of New York, Third Department
Dec 29, 1994
210 A.D.2d 835 (N.Y. App. Div. 1994)

Opinion

December 29, 1994

Appeal from the Unemployment Insurance Appeal Board.


In May 1988, claimant, a British national, was admitted to the United States on a nonimmigrant H-1 visa as a modern dancer sponsored and employed by Merce Cunningham Dance Company in New York City. For three weeks in 1989 and two weeks in 1992, claimant, along with all other dancers in the company, were laid off during hiatuses in the company's schedule. During both of those periods all of the dancers applied for unemployment benefits. Everyone received benefits except claimant. Both Administrative Law Judges found that the employment restriction in her H-1 visa precluded her from legally accepting an offer of employment from any other employer during the periods in issue. For this reason, claimant was deemed unavailable for work and ineligible to receive benefits. The determinations were affirmed on administrative appeal, giving rise to these appeals by claimant.

In 1988 an H-1 visa admitted an alien on a nonimmigrant status who was "of distinguished merit and ability and who [was] coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability" (8 U.S.C. former § 1101 [a] [15] [H]).

Labor Law § 527 (1) (a) disqualifies a claimant from receiving unemployment compensation benefits for any period during which the claimant is not able or available for work. To support its determinations, the Unemployment Insurance Appeal Board relied on the Federal Department of Labor's interpretation on the subject as expressed in its Unemployment Insurance Program Letter No. 1-86: "Under the laws of all States, a claimant must be 'able and available' to work to be eligible for unemployment compensation. In addition to meeting other State availability requirements, an alien must be legally authorized to work in the United States to be considered 'available for work.' Therefore, an alien without current, valid authorization to work from the INS is not legally available for work and not eligible for benefits" (51 Fed Reg 29714 [1986]). In addition, claimant conceded that her H-1 visa restricted her employment to a single employer and that in order for her to have worked for any other employer, she would have had to obtain an amendment to her visa. Substantial evidence in the record supports the Board's finding that claimant was not legally authorized to work once her employment with Merce Cunningham Dance Company ceased. The Board's decision that claimant was unavailable for work when she sought unemployment benefits has a rational basis (see, Matter of Fisher [Levine], 36 N.Y.2d 146) because she was legally barred from working for any other employer (see, Matter of Zapata [Levine], 50 A.D.2d 681, 682; see also, Pinilla v Board of Review Dept. of Labor Indus., 155 N.J. Super. 307, 311, 382 A.2d 921).

Furthermore, the availability for work requirement must be satisfied by all claimants, irrespective of their status as citizens, resident aliens or holders of nonimmigrant visas, and we therefore find no equal protection violations.

Mercure, White, Casey and Peters, JJ., concur. Ordered that the decisions are affirmed, without costs.


Summaries of

Matter of Diamond

Appellate Division of the Supreme Court of New York, Third Department
Dec 29, 1994
210 A.D.2d 835 (N.Y. App. Div. 1994)
Case details for

Matter of Diamond

Case Details

Full title:In the Matter of the Claim of EMMA J. DIAMOND, Appellant. JOHN F. HUDACS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 29, 1994

Citations

210 A.D.2d 835 (N.Y. App. Div. 1994)
620 N.Y.S.2d 595

Citing Cases

Matter of the Claim of Okumakpeyi

It is well settled that "an alien without current, valid authorization to work from the INS is not legally…

Matter of the Claim of Gibei

Claimant appeals. We affirm. "[A]n alien without current, valid authorization to work from the INS is not…