VESPREMI,
APPELLEE,
vs.
GILES, ADMR., BUREAU OF
EMPLOYMENT SERVICES, APPELLANT, ET
AL.
No. C-790087
COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTON
COUNTY
427 N.E.2d 30, 68 Ohio App. 2d 91, 22 Ohio Op. 3d 102
April 9, 1980, Decided
APPEAL: Court of Appeals for Hamilton
County.
HEADNOTE
Unemployment compensation benefits -- Alien status -- R. C.
4141.29(J) -- Benefits may not be denied due to alien status,
unless -- It is established that claimant was not lawfully admitted
to United States -- R.
C. 4141.29(J) to be construed liberally.
SYLLABUS
1. R. C. 4141.29(J)(2) provides
that no one otherwise eligible for unemployment compensation
benefits shall be denied benefits because of his alien status
unless it is established, by a preponderance of the evidence, that
he was not lawfully admitted to the United States.
2. R. C. 4141.46 requires that R. C.
4141.29(J) be construed liberally in favor of the applicant.
COUNSEL
Mr. Michael J.
Mooney, for appellee.
Mr. William J. Brown, attorney general, and
Mr. Marquette D. Evans, for appellant.
JUDGES
BETTMAN, P. J., SHANNON and BLACK,
JJ., concur.
AUTHOR: PER CURIAM
OPINION
{*91} The question here before us is the eligibility of an
alien for unemployment compensation benefits. Appellee, Laslo
Vespremi, the applicant for such benefits, was admitted to the
United States on October 4, 1975. He had a two-year {*92}
visa as an exchange student which permitted him to work. He was
employed from February 23, 1976, to March 12, 1978. During this
period his passport, visa and work permit expired. He was processed
as a deportable alien and he requested asylum in the United States.
His request for asylum had the legal effect of permitting him to
remain in the country and to be eligible for a work permit.
On April 3, 1978, he made application for unemployment
compensation benefits. His application was disallowed by the
Administrator and the Board of Review of the Bureau of Employment
Services, and his administrative appeals were denied. The basis for
disallowance of his application was that he was ineligible for
benefits under the requirements of R. C. 4141.29(J)(1) and (2).
These sections provide:
"(J) Benefits shall not be paid on the basis of employment
performed by an alien, unless the alien had been lawfully admitted
to the United States for permanent residence at the time the
services were performed, was lawfully present for purposes of
performing the services, or was otherwise permanently residing in
the United States under color of law at the time the services were
performed, under section 203(a)(7) or 212(d)(5) of the 'Immigration
and Nationality Act' 66 Stat. 163, 8 U.S.C.A. 1101:
"(1) Any data or information required of individuals applying
for benefits to determine whether benefits are not payable to them
because of their alien status shall be uniformly required from all
applicants for benefits;
"(2) In the case of an individual whose application for benefits
would otherwise be approved, no determination that benefits to the
individual are not payable because of his alien status shall be
made except upon a preponderance of the evidence that the
individual had not, in fact, been lawfully admitted to the United
States."
On appeal to the Court of Common Pleas of Hamilton County, the
decision of the board of review was reversed and benefits ordered
paid. The Administrator of the Bureau of Employment Services brings
this appeal, assigning three errors, the first of which is
that:
"The lower court erred in holding that Mr. Vespremi was
qualified for unemployment benefits under Ohio Revised Code Section
4141.29(J)(1) and (2)."
The thrust of appellant's argument in support of this error is
that appellee was not admitted to the United States as a permanent
resident, was not lawfully present for performing work and was not
permanently residing here under color of law. Therefore, argues
appellant, the appellee is disqualified under the requirements of
R. C. 4141.29(J). We disagree because R. C. 4141.29(J) is modified
by R. C. 4141.29(J)(2), which states specifically that no one
otherwise eligible shall be denied benefits because of his alien
status unless it is established that he was not lawfully admitted
to the United States. It is agreed that appellee was lawfully
admitted to the country; and, he is, therefore, not disqualified by
his alien status.
We recognize the inconsistency between R. C. 4141.29(J) and R.
C. 4141.29(J)(2), but consider ourselves bound under R. C. 4141.46
to construe the statute liberally in favor of the applicant. The
first assignment of error is overruled.
Appellant's second assignment states:
"The lower court exceeded its jurisdiction in ordering Albert G.
Giles [the Administrator] to pay unemployment benefits to Mr.
Vespremi."
This assignment has been mooted by the fact that no payment to
appellee was made until the bureau determined what benefits were
payable in accordance with law.
Finally, appellant urges that:
"The lower court erred in failing to find that Mr. Vespremi was
not entitled to unemployment compensation benefits for the reason
that he was not able to work and not available for work, as
required by Section 4141.29(A)(4)(a), Ohio Revised Code."
The gist of the argument in support of this assignment is that
when appellee applied for benefits on April 3, 1978, he did not
have a valid work permit and therefore was ineligible for benefits
under R. C. 4141.29(A)(4)(a). In pertinent part, R. C. 4141.29
provides:
"(A) No individual is entitled to * * * benefits for any week
unless he:
"* * *
(4)(a) Is able to work and available for suitable work and is
actively seeking suitable work * * *."
We find this argument unpersuasive. Appellee had in fact worked
regularly until March 12, 1978, even though his work {*94}
permit had expired February 18, 1977. A letter, in evidence, from
the Immigration and Naturalization Service indicates that appellee
would have been granted a permit, on application, at any time after
he had requested asylum in the United States on September 7, 1977.
In fact, he applied for a work permit on April 12, 1978, and it was
granted forthwith. The assignment of error is overruled.
All assignments of error properly before this court having been
ruled upon as heretofore set forth the judgment herein appealed
must be affirmed.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.