uipl_1491.html

ETA Advisory File Text

U.S. DEPARTMENT OF LABOREmployment and Training AdministrationWashington D. C. 20210 CLASSIFICATION UIFUTA CORRESPONDENCE SYMBOL TEURL ISSUE DATE March 6 1991 RESCISSIONS None EXPIRATION DATE March 31 1992 DIRECTIVE UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 14-91 TO ALL STATE EMPLOYMENT SECURITY AGENCIES FROM DONALD J. KULICKAdministratorfor Regional Management SUBJECT Amendment to Section 3304 a 14 A FUTA Made By Section 162 e 4 of P.L. 101-649 the Immigration Act of 1990 Purpose.To inform States of the amendment made to Section 3304 a 14 A of the Federal Unemployment Tax Act FUTA by Section 162 e 4 of P.L. 101-649. References.Section 3304 a 14 A FUTA UIPL 1-86 dated October 28 1985 UIPL 1-86 Change 1 dated February 16 1989 Sections 162 e 4 and 161 a of P.L. 101-649 Sections 201 b 203 c 3 and 203 h of P.L. 96-212 and Sections 207 and 208 of the Immigration and Nationality Act. Background.P.L. 101-649 the Immigration Act of 1990 was enacted into law on November 29 1990. Section 162 e 4 of P.L. 101-649 amends Section 3304 a 14 A FUTA effective October 1 1991. Section 3304 a 14 A FUTA requires as a condition for the Secretary of Labor's certification of a State to the Secretary of the Treasury that the State law provide that compensation shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed was lawfully present for purposes of performing such services or was permanently residing in the United States under color of law at the time such services were performed including an alien who was lawfully present in the United States as a result of the application of the provisions of section 203 a 7 or section 212 d 5 of the Immigration and Nationality Act . Section 162 e 4 of P.L. 101-649 amended Section 3304 a 14 A FUTA by striking quot section 203 a 7 or quot . This amendment takes effect on October 1 1991 as provided in Section 161 a of P.L. 101-649. Discussion.Prior to the amendment made by Section 162 e 4 of P.L. 101-649 becoming effective Section 3304 a 14 A FUTA provides that the category of aliensv quot permanently residing in the United States under color of law quot PRUCOL includes aliens lawfully present in the United States as a result of the application of Section 203 a 7 of the Immigration and Nationality Act INA . Section 203 a 7 INA which related to conditional entrants was repealed by Section 203 c 3 of the Refugee Act of 1980 P.L. 96-212 and replaced under Section 201 b of the Refugee Act by the addition of Sections 207 and 208 to the INA. Under Section 203 h of the Refugee Act Section 203 a 7 INA is applicable prior to April 1 1980. In addition Section 203 h of the Refugee Act provides that effective April 1 1980 any reference in Federal law to Section 203 a 7 INA is considered a reference to Sections 207 and 208 INA. Section 207 relates to refugees and Section 208 to asylees both of which are therefore considered to be in PRUCOL status under Section 3304 a 14 A FUTA. See Unemployment Insurance Program Letters UIPL 1-86 and 1-86 Change 1. Section 162 e 4 of P.L. 101-649 amended Section 3304 a 14 A FUTA to delete the reference to obsolete Section 203 a 7 INA. The amendment does not make any reference to refugees and asylees. Since PRUCOL status is no longer automatic for refugees and asylees the Department of Labor's interpretation of the two-part test of Section 3304 a 14 A for determining PRUCOL status must be satisfied. Aliens granted refugee and asylee status will continue to be considered in PRUCOL status for the purpose of determination of eligibility for unemployment compensation because aliens in this status satisfy the Department's two-part test. Under the two-part test the alien must first be residing under quot color of law. quot As stated in UIPL 1-86 Change 1 for an alien to be residing quot under color of law quot the Immigration and Naturalization Service INS must know of the alien's presence and must provide the alien with written assurance that enforcement of deportation is not planned. Second to be quot permanently residing quot the INS must give the alien permission to remain in the U.S. for an indefinite period of time. Specifically in the case of refugees and asylees the INS has affirmatively acted to grant status under the relevant provisions of the INA. The granting of such status in either case gives quot color of law quot to the alien's presence in the United States for an indefinite period of time. Therefore both groups of aliens are residing under quot color of law quot and are also quot permanently residing quot because they retain such status until revoked by the INS. Action Required.It is recommended that States delete any references in State law to obsolete Section 203 a 7 INA. If Congress adds a new provision designated as Section 203 a 7 to the INA and aliens admitted under such section are subsequently deemed by the Department of Labor not to have PRUCOL status States will be required to delete references to Section 203 a 7 from State law to assure consistency of State law with Section 3304 a 14 A FUTA. Please inform appropriate staff of the change in Section 3304 a 14 A FUTA made by P.L. 101-649. Inquiries.Please direct inquiries to the appropriate Regional Office.