STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

VIKTOR ZHEREBITSKIY, Employee

U W MADISON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002198DV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, as of week 18 of 2007, the claimant is not eligible for benefits based on his employment with the employer.

Dated and mailed September 20, 2007
zherevi2 . usd : 164 : 1   ET 483.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The claimant is a Canadian citizen who was in the United States on a J-1 Visa to perform a medical residency through the University of Wisconsin. The claimant contends he should be entitled to benefits based upon his services, notwithstanding the provisions of Wis. Stat. § 108.02(15)(j)6., which specifically excludes from "employment" service:

"By a nonresident alien for the period that he or she is temporarily present in the United States as a nonimmigrant under 8 USC 1101(a)(15)(F), (J), (M), or (Q), if the service is performed to carry out the purpose for which the alien is admitted to the United States, as provided in 8 USC 1101(a)(15)(F), (J), (M), or (Q). . . ."

In his petition for review the claimant maintains that Title 8 of the United States Code, which clarifies the term "immigrant" and lists different types of nonimmigrant aliens, has nothing to do with unemployment insurance. He contends that, since he never had any desire or intent to immigrate from Canada, use of this code section makes no sense. However, the portion of the Wisconsin U.I. statute addressing excluded services performed by a nonresident alien, Wis. Stat. § 108.02(15)(j)6., specifically cites to and is based on the federal code section in question. Consequently, the claimant's argument must fail.

The claimant also argues that the administrative law judge erroneously found that he was receiving "graduate medical training," when in fact his visa classifies him as an "alien physician" and his work was performed in a "postgraduate" residency program. The claimant maintains that he performed "dual duties," as both a postgraduate trainee and as a physician. This argument fails. The evidence in the record indicates that the claimant was a trainee and not a full-fledged physician. The claimant's visa did indicate that the claimant's "exchange visitor category" was "alien physician," but described the position he was filling as "postgraduate medical trainee." At the hearing the claimant testified that he was a "physician in training," and his offer letter from the employer referred to the position as "post graduate trainee 1." The claimant has not elaborated upon the distinction between "graduate" medical training and "postgraduate" medical training, and has not demonstrated that any genuine distinction exists. Assuming, however, that "postgraduate" medical training differs substantively from "graduate" medical training, the commission does not believe that this would alter his classification as a "nonimmigrant alien" under Title 8, which does not apply solely to individuals receiving graduate medical training, but includes any student or trainee in a field of specialized knowledge or skill here as a participant in a program designated by the appropriate agency for the purpose of studying or receiving training. See Title 8 USC § 1101(a)(15)(J).

Next, the claimant argues that an employer representative initially claimed that his employment was covered, then said it was excluded. He maintains that this person was too shy or did not have enough respect for the hearing process to appear in person to explain such flip-flopping. However, even if the claimant had established that the employer made conflicting statements about his eligibility for benefits, this would not have altered the outcome of his case. The employer has no authority to grant benefits to the claimant and its understanding of the provisions of the U.I. law does not govern. Similarly, the claimant argues that when he was hired the employer emphasized that, in terms of insurance and benefits, he would have the status of an employee of the State of Wisconsin. However, the employer made no representations regarding U.I. eligibility and, as already indicated, would have no authority to determine whether the claimant is eligible for benefits.

The claimant also argues that Canada and the United States have a reciprocity agreement regarding interstate U.I. claims. The claimant asserts that the only reason to deny a job and U.I. benefits to a United States citizen enrolled in postgraduate medical training in Canada would be lack of a work permit and an insufficient amount of hours spent on duties. The claimant contends that, in order to avoid a double standard, the same should be applied to him. He further contends that the interstate agreement is signed by the federal government of the United States and should preempt Wisconsin statutes. These arguments have no merit. In the first place, the materials provided by the claimant do not support his claims. Page 4 of the brochure on interstate benefit claims between Canada and the United States specifically states, "If you have worked in insurable employment in the United States and are now residing in Canada, you may wish to file a claim for American Unemployment Insurance benefits." Clearly, the agreement does not contemplate, as the claimant seems to assert, that all Canadians working in the United States will be eligible for U.I. benefits no matter what the circumstances. Second, the Federal Unemployment Tax Act (FUTA) contains language which is virtually identical to that in Wis. Stat. § 108.02(15)(j)6. See Title 26 USC § 3306(c)(B)(19). Consequently, there is no reason for concern that the Wisconsin statute runs afoul of federal law.

The law excludes the claimant's services from the definition of "employment." As a result, the claimant is not eligible for benefits. While the claimant may strenuously disagree with this provision, the commission is required to apply the law as it is written. Accordingly, the appeal tribunal decision is affirmed.



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