Opinion
DOCKET NO. A-0607-11T2
03-27-2013
ANIL SHARMA, Claimant-Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and KEAN CORPORATION. Respondent-Respondent.
Gregory S. Schaer, L.L.C., attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 310,235.
Gregory S. Schaer, L.L.C., attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).
Kean Corporation did not file a brief. PER CURIAM
Claimant Anil Sharma appeals from a July 18, 2011 final decision of the Board of Review, finding him ineligible for unemployment benefits. For the reasons that follow, we affirm.
Sharma is a Canadian citizen. He has worked in the United States for a number of years, under the authority of an H1B Visa and a TN1 Visa. Pursuant to the North American Free Trade Agreement (NAFTA), these visas allow Canadian citizens to work in the United States at specific types of jobs that require specialized training and for which insufficient numbers of U.S. workers are available. A Canadian citizen in Sharma's situation is not actually authorized to work in the United States until and unless he has already obtained a job offer from a U.S. employer. He must then travel to the Canadian border, or a designated international border crossing point, apply for the visa, and obtain it. Only at that point is he authorized to work in the United States, and only for that specific employer, in the approved job. See Makutoff v. Board of Review, 42 7 N.J. Super. 218, 222 (App. Div. 2012).
Holders of these visas are considered to have "nonimmigrant" status. 8 U.S.C.A. § 1184(e)(2). As reflected in Sharma's submissions to this court, a legal permanent resident alien cannot hold an H1B or TN1 Visa. There is no dispute that Sharma is not a permanent resident alien.
In 2009, Sharma was laid off from the United States company for which he had been working. When he could not promptly find another employer to employ him and sponsor him for his specialized visa category, he applied for unemployment benefits. He received benefits until the Deputy reviewed and denied his application on the grounds that he was not available for work. See N.J.S.A. 43:21-4(c)(1). On June 18, 2009, the Director sent Sharma a notice directing him to repay the $2920 in benefits that he had already received.
Sharma filed an appeal, which he claims he faxed to the agency thirty days after receiving the disqualification notice. The Appeal Tribunal found his appeal of the refund notice untimely, because it was sent beyond the ten day time limit set forth in N.J.S.A. 43:21-6(b)(1). However, on a going-forward basis, from June 21, 2009 through December 11, 2010, the Appeal Tribunal found Sharma eligible for benefits because he was "available for work and actively seeking new work regardless of whether he has to travel to the Canadian border to receive the appropriate Visa following a work offer."
Sharma appealed to the Board from the determinations that his appeal was untimely and that he was required to repay the benefits. In its July 18, 2011 decision, the Board agreed with the Appeal Tribunal that the appeal was untimely. But the Board rejected the Appeal Tribunal's decision that Sharma was eligible for benefits beginning on June 21, 2009. The Board reasoned that, under the limited terms of his visa, Sharma "was not available for work until the new employer filed an application and received approval for the claimant's status as a Temporary Worker. . . . [Sharma] was unauthorized to work until he was sponsored by his [new] employer" and was unavailable to work prior to that time.
On this appeal, we must sustain the Board's decision so long as it is supported by substantial credible evidence and is consistent with applicable law. See Brady v. Board of Review, 152 N.J. 197, 210 (1997). We conclude that the Board's decision concerning the timeliness of Sharma's administrative appeal is supported by sufficient credible evidence. Sharma did not provide good cause for the late submission. See N.J.A.C. 12:20-4.1(h). His arguments on this point are without merit and do not warrant further discussion. R. 2:11-3(e)(1)(E). We therefore affirm the determination that he must pay the refund amount.
We also affirm the decision disqualifying Sharma from receiving benefits, for the reasons stated in the Board's decision. In Makutoff, we addressed this issue in detail. We concluded that a non-immigrant alien working in this country pursuant to NAFTA, under an H1B or TN visa, is not "'available for work'" between legally-authorized jobs and is therefore not eligible for unemployment benefits. Makutoff, supra, 427 N.J. Super. at 225 (quoting N.J.S.A. 43:21-4(c)). Moreover, as discussed below, Sharma's claim is barred by another section of the unemployment benefit statute.
The statute specifically addresses the eligibility of foreign nationals. The statute provides that, with exceptions not relevant here, only permanent resident aliens and other permanent legal residents are eligible for unemployment benefits:
Benefits shall not be paid 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 the services were performed and was lawfully present for the purpose of performing the services or otherwise was permanently residing in the United States under color of law at the time the services were performed.This statutory provision conforms to the requirements of federal law, which limits the payment of unemployment benefits to permanent resident aliens and others who are "permanently residing in the United States under color of law." 26 U.S.C.A. § 3304(a)(14)(A). Because Sharma was not a permanent legal resident of the United States, he could not qualify for unemployment benefits. N.J.S.A. 43:21-4(i)(1).
[N.J.S.A. 43:21-4(i)(1).]
In light of Congress's plenary power to regulate immigration, including the provision of benefits to aliens, we find no merit in Sharma's constitutional challenge to the denial of benefits. See Matthews v. Diaz, 426 U.S. 67, 78-81 n.12, 96 S. Ct. 1883, 1890-92 n.12, 48 L. Ed. 2d 478, 489-92 n.12 (1976); Pinilla v. Board of Review, 155 N.J. Super. 307, 312-13 (App. Div. 1978). His constitutional arguments do not merit further discussion. See R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION