EI Benefits for Temporary Foreign Workers (TFWs) with Expired Work Permit
An expired work permit does not have the same consequences for every type of Employment Insurance (EI) benefit. For temporary foreign workers (TFWs), the distinction between regular EI benefits and special benefits such as maternity and parental benefits is critical.
A worker who loses authorization to work in Canada may face a significant obstacle to receiving regular EI benefits. But that does not automatically answer whether the same worker can qualify for maternity or parental benefits after accumulating insurable hours and paying EI premiums.
At Apuntar Legal Services Professional Corporation, we believe workers should understand the applicable law before concluding that an expired work permit or Social Insurance Number (SIN) means they have no possible entitlement.
Regular EI benefits: availability for work is essential
Regular EI benefits are intended for eligible workers who lose employment through no fault of their own and are capable of and available for work but unable to obtain suitable employment.
Section 18(1)(a) of the Employment Insurance Act provides that a claimant is not entitled to benefits for a working day unless they prove that they were capable of and available for work and unable to obtain suitable employment.
For a TFW whose work permit has expired, the central issue is whether the person is legally able to accept and perform employment in Canada.
A visitor record generally allows a person to remain in Canada under the conditions imposed, but it does not, by itself, authorize employment.
The three-part Faucher test for availability
The EI Act does not provide a complete definition of availability for work. In Faucher v Canada (Employment and Immigration Commission), A-56-96 and A-57-96, the Federal Court of Appeal established three factors that must be considered when assessing availability for regular EI benefits:
The desire to return to work: Does the claimant want to return to the labour market as soon as suitable employment is available?
Efforts to find suitable employment: Has the claimant demonstrated that desire through efforts to find a suitable job?
Personal conditions restricting employment: Has the claimant imposed personal conditions that might unduly limit their chances of returning to work?
All three factors must be considered together. A claimant's actual attitude and conduct are relevant to the assessment.
For a TFW whose work permit has expired, the third factor can be particularly significant. The claimant may genuinely want to work and may have made reasonable efforts to find a job. However, if they cannot legally accept employment, their immigration circumstances may unduly restrict their chances of returning to work.
Case law: Canada Employment Insurance Commission v JP, 2024 SST 559
In this case, the Social Security Tribunal's Appeal Division considered the availability of a claimant whose work permit had expired.
The claimant satisfied the first two Faucher factors. However, the Appeal Division concluded that not renewing the work permit before expiry constituted a personal condition that unduly limited the claimant's chances of returning to work. Because the claimant was not legally authorized to work in Canada, the claimant was not available for regular EI benefits under section 18(1)(a).
This decision demonstrates that a genuine willingness to work and efforts to find employment do not necessarily establish legal availability.
The practical lesson: A TFW who allows their work permit to expire without applying for an extension should not assume that paying EI premiums, accumulating sufficient insurable hours or actively looking for work will establish entitlement to regular benefits.
Official references:
Special EI benefits: a different legal analysis
Special EI benefits include maternity, parental, sickness, compassionate care and family caregiver benefits, subject to the statutory requirements applicable to each benefit.
The availability analysis differs from the one applied to regular benefits.
Section 22 of the Employment Insurance Act governs maternity benefits. Subsection 22(1) provides that, despite section 18, maternity benefits are payable to an eligible claimant who proves her pregnancy, subject to the section's requirements.
Similarly, subsection 23(1) governs parental benefits and provides that, despite section 18, benefits may be payable to an eligible claimant caring for a newborn child or a child placed for adoption, subject to the section's requirements.
These provisions matter because the ordinary availability requirement in section 18(1)(a) is not a blanket eligibility condition for maternity and parental benefits.
A pregnant TFW who cannot establish availability for regular EI benefits may therefore still have a maternity-benefit claim that requires a separate assessment.
However, this does not mean that every pregnant TFW qualifies. The claimant must still satisfy the applicable qualifying and entitlement conditions, including the relevant insurable-hours requirement and the rules governing the particular benefit.
Official references:
Does an expired SIN automatically disqualify a claimant from special benefits?
A temporary SIN beginning with the number 9 is generally issued with a validity period linked to the worker's immigration authorization. When the work permit expires, the SIN's validity may also expire unless the worker obtains the necessary updated documentation.
But an expired SIN and entitlement to EI benefits are distinct legal questions.
Case law: TT v Canada Employment Insurance Commission, 2025 SST 1432
This decision is particularly relevant to claims for maternity and parental benefits.
The claimant had applied to extend her work permit before it expired. The Commission initially paid maternity and parental benefits but later imposed a retroactive disentitlement and assessed an overpayment.
The Commission's position changed during the proceedings. The Tribunal found that the claimant had been disentitled because of the Commission's position concerning her authorization to remain in Canada, not simply because her SIN had expired.
The Tribunal concluded that the claimant was not disentitled from receiving maternity and parental benefits merely because her SIN had expired.
The decision is important because it rejects the idea that an expired SIN, standing alone, necessarily determines entitlement to maternity and parental benefits.
However, the facts must be understood carefully. The claimant had applied to extend her work permit before expiry. This decision does not automatically resolve the case of a TFW who never applied for an extension and subsequently obtained visitor status.
Read the decision: TT v Canada Employment Insurance Commission, 2025 SST 1432.
Section 50: claim requirements can create a separate obstacle
Section 50 of the Employment Insurance Act governs the making of claims and compliance with claim requirements.
Under subsection 50(1), a claimant who fails to fulfil or comply with a condition or requirement under section 50 is not entitled to receive benefits for as long as the failure continues.
Subsection 50(3) requires a claim to be made by completing a form supplied or approved by the Commission in accordance with its instructions. Subsection 50(5) allows the Commission to require additional information about a claim.
Importantly, subsection 50(10) gives the Commission discretion to waive or vary conditions and requirements under section 50 or the applicable regulations when it considers that the circumstances warrant doing so for the benefit of a claimant or a class or group of claimants.
Case law: MS v Canada Employment Insurance Commission, 2024 SST 1353
This case illustrates the distinction between the availability test and compliance with claim requirements.
The claimant's work permit had expired, and she had obtained a visitor record. The Tribunal found that she had demonstrated availability for work under section 18(1)(a), taking account of her particular circumstances.
Nevertheless, the claimant had not provided a valid SIN and work permit, or proof of a timely renewal application, as required by the Commission. The Tribunal upheld the disentitlement under subsections 50(1) and 50(3).
The Tribunal also noted that the Commission had discretion under subsection 50(10) to waive or vary certain requirements, but there was no evidence that the Commission had considered exercising that discretion.
The decision shows why it is important to examine the precise basis for an EI denial. A claimant may satisfy the availability test but still face a separate disentitlement based on the information or documentation required for the claim.
Section 50(10) is not an automatic exemption. Whether it can be exercised depends on the particular requirement and circumstances.
Read the decision: MS v Canada Employment Insurance Commission, 2024 SST 1353.
What if the claimant has already left Canada?
The rules concerning payment of benefits outside Canada require separate consideration.
Subsection 55(4) of the Employment Insurance Regulations provides that an eligible claimant is not disentitled from receiving specified benefits relating to pregnancy, childcare and certain caregiving circumstances solely because they are outside Canada, unless their SIN card or the period of validity of their SIN has expired.
This provision makes the validity of the SIN particularly important when a claimant seeks to receive these benefits outside Canada. It should not be misinterpreted as a universal rule that every person with an expired SIN is ineligible for all special benefits while living in Canada.
Official reference: Employment Insurance Regulations, subsection 55(4).
Applying the law to a pregnant TFW on visitor status
Consider a temporary foreign worker who:
Worked in Canada and paid EI premiums.
Accumulated at least 600 insurable hours during the relevant qualifying period.
Allowed their work permit to expire without applying for an extension.
Obtained a visitor record and is now pregnant.
Has a SIN whose validity period has expired.
The worker's inability to establish availability for regular EI benefits does not, by itself, resolve the question of maternity-benefit entitlement.
The correct analysis distinguishes among:
Section 18: the availability requirement for regular benefits.
Section 22: the statutory requirements for maternity benefits.
Section 23: the statutory requirements for parental benefits.
Section 50: the requirements for filing and supporting a claim, including the Commission's discretion under subsection 50(10).
Subsection 55(4) of the EI Regulations: the specific rule concerning certain benefits paid while a claimant is outside Canada.
The expired work permit, visitor status and expired SIN are relevant facts. But their legal significance depends on which benefit is claimed and the specific provisions that apply.
The cases also illustrate the distinction. JP demonstrates the difficulty of establishing availability for regular benefits without work authorization. MS demonstrates that a claimant may satisfy the availability test but remain disentitled for failing to provide required documentation. TT demonstrates that an expired SIN alone should not automatically be treated as resolving a maternity or parental claim.
A careful legal assessment is therefore necessary before concluding that a pregnant former TFW has no possible entitlement to EI maternity benefits.
What should a worker do after an EI denial?
If Service Canada denies a claim, the worker should obtain the written decision and identify the precise reason for the denial.
Relevant evidence may include Records of Employment, pay statements, proof of insurable hours, work permits, visitor records, SIN documentation and correspondence with Service Canada.
A request for reconsideration generally must be made within 30 days after the decision is communicated, although an extension may be available in appropriate circumstances.
The worker should consider the applicable legislation and relevant case law before deciding whether to challenge the decision.
How Apuntar Legal Services can help
Apuntar Legal Services Professional Corporation can help clients understand EI decisions and assess available options within the scope of its authorized legal practice.
If your EI claim has been denied because your work permit expired, your SIN is no longer valid, or you changed to visitor status, the reason for the denial matters. Regular benefits and special benefits must be assessed under their respective legal requirements.
Do not assume that an expired work permit automatically ends every possible EI claim. Understand the decision, the legislation and the options available to you.
Visit Apuntar Legal Services to book an appointment.
Disclaimer: This article provides general legal information, not legal advice. EI entitlement depends on the governing legislation, regulations, current policy and the facts of the individual claim. Tribunal decisions are fact-specific and should not be read as guarantees of entitlement in other cases.
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