Foreign Citizen Whose Admission to the United States Limits Him to a Single Employer is Not “Available for Work” and Eligible for Unemployment Benefits When That Employer Discharges Him

Makutoff v. Board of Review, 427 N.J. Super. 218 (App. Div. 2012).  Plaintiff, a Canadian citizen, was employed in this country under a limited work authorization issued by the Department of Homeland Security(“DHS”) pursuant to the North American Free Trade Agreement.  Plaintiff’s permission to work in the United States was limited to a single employer, Society General, for a one-year term.  However, after plaintiff had been employed at Society General for about one month (during which he paid into the unemployment compensation fund), Society General laid him off.  Plaintiff sought and, for one week, received unemployment benefits.  Ultimately, though, the Board of Review determined that he was ineligible for unemployment and required plaintiff to repay what he had received.  Plaintiff appealed to the Appellate Division.  In an opinion by Judge Alvarez, the panel affirmed plaintiff’s ineligibility for unemployment compensation.

Plaintiff bore the burden of showing his entitlement to unemployment benefits.   The key issue was whether plaintiff was “available for work,” as required by N.J.S.A. 43:21-4(c) before a person can be eligible for unemployment benefits.  Relying on the terms of plaintiff’s admission into the United States, which limited his ability to work in this country only for one employer, Society General, the panel concurred with the agency head’s “conclusion that availability for hire by one employer does not meet the statutory requirement.”  This was because, under the deferential standard of review of administrative agency decisions, an agency’s interpretation of a statutory regime that the Legislature entrusts to that agency to administer is to be upheld unless “plainly unreasonable,” and the agency head’s view was not plainly unreasonable.  On the contrary, Judge Alvarez found the agency head’s perspective to be a “commonsense reading” of the statute.

Plaintiff also cited the fact that another firm had written to DHS asking whether that firm could hire plaintiff.  He urged that this was a job offer, which meant that he was “available for work.”  Judge Alvarez disagreed.  “The document was clearly a request for DHS authorization to hire Makutoff, not a job offer, and supports the Board’s position that Makutoff was not ‘available for work.’ ….  “Available for work’ means a job seeker can be hired on the spot, not that he or she is eligible to apply for authorization by the federal government in order to accept a position with an identified employer.”  The panel cited two New York state cases in support of that principle.