Matter of Magassouba (Commissioner of Labor) (2022 NY Slip Op 05573) Matter of Magassouba (Commissioner of Labor) 2022 NY Slip Op 05573 Decided on October 6, 2022 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:October 6, 2022 534452 [*1]In the Matter of the Claim of Moustapha Magassouba, Appellant. Commissioner of Labor, Respondent. Calendar Date:September 9, 2022 Before:Garry, P.J., Egan Jr., Lynch, Clark and Ceresia, JJ. Moustapha Magassouba, New York City, appellant pro se. Letitia James, Attorney General, New York City (Linda D. Joseph of counsel), for respondent. Egan Jr., J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 5, 2021, which ruled, among other things, that claimant was ineligible to receive pandemic unemployment assistance. Claimant immigrated to the United States from Guinea on a business visa in 1990. Claimant's subsequent request to adjust his immigration status was denied due to a prior criminal conviction, and he was in the process of being removed from the country when he obtained an executive pardon in 2013. In the interim, claimant remained in the United States, obtained a Social Security card that was valid for work only with appropriate authorization and filed a family petition seeking to adjust his status to lawful permanent resident. In 2016, claimant formed his own limited liability company, where he worked as an electrician, and thereafter obtained authorization to work in the United States from June 5, 2017 through June 4, 2018. Although claimant's family petition was granted in September 2019 — rendering him eligible for a visa once one became available — claimant did not receive a visa at that time and did not seek to renew his employment authorization prior to the expiration thereof.[FN1] Claimant stopped working in March 2020, and his subsequent application for regular unemployment insurance benefits was denied upon the ground that the wages earned during the relevant time period were excludable because they were attributable to the services claimant performed for his limited liability company and, further, were earned during a period of time when claimant was not authorized to work in the United States. Claimant also was apprised that he had insufficient earnings in either his base period or alternate base period to file a valid original claim and that he was disqualified from receiving benefits effective March 2, 2020 and continuing until the basis for his ineligibility, i.e., his unavailability for work due to his lack of employment authorization, ceased. Additionally, claimant was deemed to be ineligible for pandemic unemployment assistance provided pursuant to the Coronavirus Aid, Relief and Security Act, more commonly known as the CARES Act, enacted on March 27, 2020 (see 15 USC § 9021, as added by Pub L 116-136, 134 US Stat 281, 313). As he already had received certain benefits, claimant was charged with a recoverable overpayment of pandemic unemployment assistance (hereinafter PUA) …
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