Question: Are Canadian TN visa workers who've been working in New York State and are laid off long before the expiration of their I-94 entitled to unemployment benefits once they return to Canada?

Reply: In New York State, the general rule is that TN visa workers are not eligible for unemployment insurance benefits. New York State law provides that an individual must be “able to work, and available for work” in order to be eligible for unemployment insurance benefits. N.Y. Lab. Law § 527(1)(a).

New York courts interpreting this law have held that laid-off TN visa workers cannot satisfy this requirement because they must first obtain TN visa status in order to work for another employer. See Matter of C. v. Commissioner of Labor, 46 A.D.3d 1065 (3rd Dept. 2007) (redacted); and In re Claim of Graif, 250 A.D.2d 1012 (3rd Dept. 1998). Even though Canadian citizens may take advantage of the fast track employment authorization afforded under NAFTA and file for TN visa status at the border, New York courts do not consider laid-off TN visa workers “available for work” and as result do not meet the requirements of New York law for unemployment insurance benefits. A court in New Jersey has also followed the reasoning in the above cases concluding that a TN visa worker was not eligible for unemployment benefits under New Jersey law. Makutoff v. Bd. of Review & Soc., 48 A.3d 362 (2012).

TN visa workers who were laid-off in New York should contact Service Canada to determine if they are eligible for benefits under Canada’s EI program.