IN RE: the Claim of Claudio T. ENRIQUE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Claudio T. ENRIQUE, Appellant. Commissioner of Labor, Respondent.

Decided: December 23, 2004

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KANE, JJ. Claudio T. Enrique, New York City, appellant pro se. Eliot Spitzer, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 17, 2004, which, upon reconsideration, adhered to its prior decision ruling, inter alia, that claimant was ineligible to receive unemployment insurance benefits because he was not available for employment.

 Claimant, a Cuban citizen, worked 11 months for a photo printing company when his employment ended.   He filed a claim for unemployment insurance benefits on July 21, 2003.   According to documentation offered in evidence at a hearing before an Administrative Law Judge, claimant was not authorized by the Immigration and Naturalization Service (hereinafter the INS) to work in the United States during the time he worked for the photo printing company or thereafter.   Consequently, the Unemployment Insurance Appeal Board found that he was ineligible for benefits because he was not available for work and also found that he was unable to file a valid original claim because his base period employment as an alien was not covered employment under Labor Law § 590(9).   Claimant now appeals.

 We affirm.  “It is well settled that ‘an alien without current, valid authorization to work from the INS is not legally available for work and not eligible for benefits' ” (Matter of Okumakpeyi [Commissioner of Labor], 295 A.D.2d 828, 829, 744 N.Y.S.2d 545 [2002], quoting Matter of Diamond [Hudacs], 210 A.D.2d 835, 836, 620 N.Y.S.2d 595 [1994];  see Matter of Gibei [Commissioner of Labor], 284 A.D.2d 784, 785, 727 N.Y.S.2d 189 [2001] ). Inasmuch as the record confirms the absence of documentation establishing that the INS authorized claimant to work in the United States during the time period in question, we find no reason to disturb the Board's finding that he was not available for work or that he was unable to file a valid original claim.

ORDERED that the decision is affirmed, without costs.

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