Are Foreign Workers Entitled to Employment Insurance Benefits in Canada?

COVID-19 has had an unprecedented impact on life as we know it in Canada and around the world.  Our social life, families, businesses, and ability to travel have been severely impacted. However, few things can compare to the uncertainty and stress COVID-19 has caused to temporary foreign workers in Canada and anyone desiring to access Canadian immigration programs and services.

In the wake of social distancing measures thousands are being laid off and for many people there is little hope in finding a sustainable source of income in the near future. For temporary foreign workers, these problems are exacerbated.  Not only are financial problems a reality, but this crisis has caused considerable uncertainty for foreign workers regarding their current immigration status, prospective immigration applications, and ability to access the same social and economic benefits being made available to help Canadians and permanent residents during the pandemic.

While many temporary foreign workers have been left without employment income, some are also unable to return home due to travel restrictions in their country. Fortunately, the Canadian Employment Insurance Benefit program may be available to help foreign workers survive temporarily through these stressful and uncertain times.

Below, we will examine the extent to which foreign workers may be entitled to Employment Insurance Benefits (“EI Benefits”). In particular, we will discuss the eligibility requirements, and how the type and validity of a work permit can have a direct impact on a foreign worker’s eligibility to receive EI Benefits.

Are foreign workers entitled to Employment Insurance benefits?

Foreign workers employed in insurable employment are required to pay Employment Insurance (EI) premiums. Provided that all eligibility conditions are met, foreign workers are entitled to receive regular loss of employment benefits as well as other benefits related to sickness, maternity leave, parental leave, compassionate care and family caregiver benefits in the same fashion as Canadian citizens and permanent residents.

What are the eligibility requirements for EI regular benefits?

According to the general rule, foreign workers, as any other workers may be eligible for EI regular benefits if they:

• are employed in insurable employment;
• lost employment through no fault of their own;
• have been without work and without pay for at least seven consecutive days in the last 52 weeks;
• have worked for the required number of insurable hours in the last 52 weeks or since the start of their last EI claim, whichever is shorter;
• are ready, willing, and capable of working each day; and
• are actively looking for work (they must keep a written record of employers they contact, including when they contacted them).

However, it is also important to take note that the foreign worker will not be entitled to EI regular benefits if they voluntarily leave employment without cause, were dismissed for misconduct or are unemployed because of directly participating in a labour dispute.

In order to get EI regular benefits, the temporary foreign worker must demonstrate that they meet all of the requirements set out above. However, the key factor in determining the eligibility of foreign workers lies in their readiness, willingness, and capability of working each day. The type and validity of the work permit can play a decisive role in determining whether or not the claimant can demonstrate this requirement.

Valid open work permit holders

Generally, foreign workers can only demonstrate availability to accept work if they possess a work permit which allows them to work in Canada. When temporary foreign workers have a valid open work permit, they are allowed to accept employment and to work for any employer during the period specified on the work permit, subject to some occupational restrictions that require completion of an immigration medical exam. Because of these broad employment conditions, it is relatively easy for an open work permit holder to establish their availability to work. When there are no other restrictions on the work permit, or contradictory evidence on file concerning the claimant’s availability to work, entitlement to benefits must be considered the same as for any other claimant.

Valid employer-specific work permit holders

In contrast to the temporary foreign workers with open work permits, a person who holds a restricted work permit is not normally considered to be available to accept work and may be disentitled from collecting benefits. However, existing case law suggests that although closed work permit imposes restrictions on claimant’s employment, these restrictions do not automatically bar a claimant from Employment Insurance benefits, since they are imposed by federal statute and are beyond control of a temporary foreign worker. Provided that the claimant proves his availability, restrictions of the employer specific work permit should not preclude the claimant from receiving Employment Insurance benefits. Therefore, in the situation when the claimant has been laid off and has a valid employer specific work permit, it is strongly recommended to apply for extension or renewal of the work permit to formally demonstrate readiness to take up work.

Will the claimant be eligible for EI general benefits if their WP is expired or non-renewable?

In cases where the temporary foreign worker has an expired work permit and has not applied for an extension prior to the expiry date, the claimant no longer has valid status in Canada. In this scenario the claimant will not be able to prove availability for work, and thus may not be entitled to EI regular benefits. However, if the temporary foreign worker proves they applied for a new work permit prior to the expiry of the previous one (referred to as implied status), availability would be considered the same as for any other claimant.

There are also foreign workers with non-renewable work permits. They are not entitled to extend the duration of their stay in Canada, and therefore, once their permit expires, the worker must leave Canada. These temporary foreign workers cannot be considered available for work regardless of whether or not they state they are willing to seek work, and that they would not refuse any employment opportunities that arise.

How to claim EI Benefits

To claim EI benefits the claimant must complete an online step-by-step application process on the official website of the Government of Canada. It is important for a foreign worker to file an online application for benefits immediately after they cease working, otherwise, if a claim is delayed for more than four weeks the opportunity to claim the benefit may be lost. A claim can be made even if the foreign worker has not received their record of employment (ROE) from their employer.

To claim EI benefits it is recommended to have the following documents and personal information which we have set out below.

• Social Insurance Number (SIN). If the SIN begins with a 9, proof of immigration status (e.g. valid work permit) is required.
• mother’s maiden name
• mailing and residential addresses, including postal codes.
• complete banking information to sign up for direct deposit, including the financial institution name, bank branch number, and account number
• names, addresses, dates of employment, and reason for separation for all employers over the last 52 weeks
• detailed version of the facts (if the foreign worker quit or has been dismissed from any job in the last 52 weeks)
• the dates of work and earnings for each of the highest-paid weeks of insurable earnings in the last 52 weeks or since the start of the last EI claim, whichever is the shorter period.

Once the application for Employment Insurance benefits has been submitted, the claimant receives a confirmation number. It is important to keep this number for future reference. Next, Service Canada mails a benefit statement to the claimant which includes the Access Code needed to submit regular bi-weekly reports.

To get the benefits as quickly as possible it is also recommended to sign up for direct deposit during the application process. The first payment will be automatically deposited within 28 days of the date the application and all the required documents were received. So it is important that foreign workers act quickly otherwise they could be waiting for over a month to obtain their first payment.

What do EI Benefits look like for a typical foreign worker?

Employment Insurance provides regular benefits to individuals who lose their jobs through no fault of their own (such as a lay-off due to COVID-19), are available for and able to work, but can’t find a job. The benefits come in the form of taxable payments and are calculated on a case-by-case basis.

For most people, the benefit is calculated at a rate of 55% of the average insurable weekly earnings and can amount to a maximum of $573 CAD per week. The claimant can receive the benefit for a limited period of 14 to 45 weeks, depending on the number of insurable hours and the unemployment rate in the region where the applicant resides.

Let’s take a look at the example and calculate the benefit for an average foreign worker. For this calculation we’re going to use a yearly salary of $40,000 CAD (which amounts to $769 CAD weekly) for a foreign worker that has accumulated 900 insurable hours within the last 52 weeks and lives in Calgary:

1. The worker will get 55% of his regular $769 CAD weekly pay. This amounts to $422.95 CAD per week
2. Next, we determine the regional unemployment rate. For Calgary it is 7.6

• Finally, we refer to the Maximum number of weeks of EI regular benefits payable table and combine the regional unemployment rate with the number of insurable hours. In our case, the worker will get employment insurance benefits for a total of 20 weeks.

As demonstrated above, our example foreign worker may be eligible for weekly payments of  $422.95 CAD for up to 20 weeks. Please note that if the foreign worker is successful in obtaining new employment then the payments will end.

Sources of Further Information

Digest of Benefit Entitlement Principles. Available at: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/digest.html

Employment Insurance regular benefits. Available at: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/regular-benefits.html