NESTOR GUTIERREZ, Claimant

On February 8, 2000, the Department of Workforce Development issued an initial determination which held that the claimant concealed the material fact that his H- 2B work visa had expired. The commission, by October 30, 2000 order, on its own motion took jurisdiction of the merits of the case and ordered hearing before a department administrative law judge, acting on the commission's behalf. That hearing was held on November 14, 2000. The matter is again before the commission, and is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge regarding credibility of witnesses, the commission issues the following:

The claimant is a seasonal worker for the employer in this case. At the end of the 1999 season, the claimant filed a claim for unemployment insurance, and the issue for resolution is whether the claimant, when he filed his claim, concealed a material fact relating to his eligibility for benefits, within the meaning of Wis. Stat. § 108.04 (11)(a). The commission concludes that he did not, and so reverses the initial determination.

The claimant is an alien, authorized to work in this country by what is known as an H-2B Visa. This category of visa allows an alien to work only for the employer named on the visa, and has a definite date of expiration, in this case November 30, 1999. Since a claimant with an H-2B visa may only work for the employer named on the visa, a claimant with this category visa is required to leave the country at the end of the work season, even if the season ends before the visa expires. One in the claimant's circumstances therefore will likely never be eligible for unemployment insurance during the period of time between the end of one work
season in the fall or early winter of one year and the beginning of the next work season in late winter or early spring.

The employer's work season ended in November of 1999. The employer's human resources manager telephoned the department to inquire whether her workers would be eligible for unemployment insurance. The department representative with whom she spoke, was unfamiliar with the H-2B visa category; however he believed, based upon his knowledge of similar visa categories, that the employees in question would be eligible for unemployment insurance at the end of the work season. The manager held a meeting of her workers, informed them of their potential eligibility for benefits, and told them to file claims for those benefits with the department. The claimant filed his claim, using his H-2B visa number. Since the claimant's visa was no longer valid, the department issued the above- mentioned initial determination of concealment.

Wisconsin Stat. § 108.04 (11) prohibits a claimant from concealing a material fact relating to his or her eligibility for unemployment insurance. Such concealment requires an intent or design by the claimant to receive benefits to which the claimant knows he or she is not entitled. See In re Kevin T. Willingham, UI Dec. Hearing No. 91609604MW (LIRC June 5, 1992) and In re Abel M. Rodriguez, UI Dec. Hearing No. 99600259MW (LIRC April 22, 1999). Concealment consists of suppression of a fact and implies a purpose or design. Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 99, 98 N.W.2d 403 (1959), citing 23 Am Jur., Fraud and Deceit, p. 851, sec. 77. There must be the intent to receive benefits to which the individual knows he or she is not entitled. Krueger v. LIRC, Case No. 81-CV- 599 A (Rock Cty. Cir. Ct. December 3, 1982) (1982-85 U.C. Digest at 235).

The commission must conclude that such intent is not present in this case. The intent in question relates to the state of mind of the claimant. Given the department representative's assessment that the workers in question should be eligible for benefits, and the relaying of that information to the workers by the employer's manager, however, the claimant (and the co-workers who also filed claims) cannot be said to have known they were not eligible for the benefits for which they filed claims.

The commission therefore finds that, in weeks 48 of 1999 through 6 of 2000, the claimant did not conceal a material fact relating to his eligibility for benefits, within the meaning of Wis. Stat. § 108.04 (11).

The initial determination is reversed. There is no concealment (or forfeiture of benefits) in this case.

Dated and mailed July 19, 2002
gutiene . urr : 105 : 6  BR 330

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Julie A. Jaksa

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