INS Nonimmigrant in TN status may receive unemployment benefits in Washington State

The State of Washington’s Office of Administrative Hearings for the Employment Security Department recently ruled that a foreign national in TN status could receive state unemployment benefits for the period of time between being laid-off and then rehired by a U.S. employer. (Matter of Carpenter, File No. 02/2001-20863.)

This ruling is contrary to established state case law, which denies unemployment benefits to foreign nationals in nonimmigrant status such as E-1/E-2, H-1B, L-1, or TN. The prevailing policy is to deny this benefit to non-immigrants based upon state guidelines, which require a recipient to be “available” to start new employment. Because most forms of temporary U.S. work authorization are employer specific, a nonimmigrant must file a new petition with the U.S. Immigration and Naturalization Service in order to begin employment with a new employer. This filing requirement and the associated delay in being eligible to begin work with a new employer prevents the foreign national from being “available” and thus eligible for unemployment benefits.