Board of Review Decision 352-N3RJ-547T

The claimant resided and worked in the United States under a TN nonimmigrant visa. After separating from her Massachusetts employer, she was not legally authorized to work in the United States. However, as a Canadian citizen, she could file an unemployment claim in Massachusetts pursuant to the Interstate Benefit Payment Plan and 430 CMR 4.05(7). She met the requirements of G.L. c. 151A, § 24(b), because she was capable of, available for, and actively seeking work in Canada during her period of unemployment.

Board of Review
100 Cambridge Street, Suite 400
Boston, MA 02114
Phone: [phone]
Fax: [phone]

Issue ID: 352-N3RJ-547T

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny unemployment benefits beginning June 8, 2025. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse. 

The claimant separated from her position with the employer on December 15, 2024. She filed a claim for unemployment benefits with the DUA, effective June 8, 2025, which was denied in a determination issued on September 17, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits, the review examiner modified the agency’s initial determination in a decision rendered on March 26, 2026, and denied benefits during the period of June 14, 2025, through January 24, 2026. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant did not establish that she was legally permitted to work in the United States during the period of June 14, 2025, through January 24, 2026. Thus, she concluded the claimant was not entitled to benefits under G.L. c. 151A, § 24(b), during that period. Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal.

The issue before the Board is whether the review examiner’s decision, which concluded that because the claimant’s current TN work authorization was limited to her former employer, she was not eligible for unemployment benefits until she received a new TN visa based on an offer of employment from a new employer, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s findings of fact are set forth below in their entirety:

1. The claimant is not a United States citizen. The claimant is a citizen of Canada.
2. In August 2023, the claimant began work in the United States. The claimant was working for [Employer A], a financial investment firm. The claimant was working as an economist. 
3. The claimant was issued a TN Visa with an arrival date of August 1, 2023, being admitted until July 31, 2026.
4. The claimant was issued a Limited Term Massachusetts Driver’s license on December 6, 2023, with an expiration date of July 31, 2026.
5. The claimant was separated from work with [Employer A] on December 15, 2024.
6. The claimant returned to Canada after being separated from [Employer A].
7. Thereafter, the claimant filed a claim for unemployment benefits in Canada and was instructed to file with the state of Massachusetts.
8. The claimant filed a claim for unemployment benefits with the Commonwealth of Massachusetts. The claim is effective the week beginning June 8, 2025.
9. The claimant was issued a B1 Visa with an entry date of May 29, 2025, being admitted until November 29, 2025.
10. On September 17, 2025, a Notice of Disqualification was issued under Section 24(b) of the Law, indicating “You are not eligible for benefits for the week ending June 14, 2025, and any weeks after that.” “You have not provided that you are legally permitted to work in the United States.” The claimant filed an appeal to that determination. 
11. The claimant had no employment from December 15, 2024, until January 26, 2026.
12. The claimant obtained new employment in the United States beginning January 26, 2026, with the employer, [Employer B], performing similar work as an economist under a new TN Visa. (That TN Visa is valid through January 21, 2029.) As of January 26, 2026, the claimant has been residing in New York while working for that employer.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. After such review, the Board adopts the review examiner’s findings of fact except as follows. We reject the portion of Finding of Fact # 4 insofar as it states that the claimant had a Limited Term Massachusetts Driver’s license, as the record reflects it was a Limited Term Massachusetts Identification Card. In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. However, as discussed more fully below, we disagree with the review examiner’s decision to deny benefits.

The review examiner determined that the claimant failed to provide documentation showing that she was authorized to work under a TN Visa after December 15, 2024, and, as such, the claimant did not show that she was available for work beyond that date. In reaching this conclusion, the review examiner applied the state law provision under G.L. c. 151A, § 24(b), which provides, in pertinent part, as follows: 

An individual, in order to be eligible for benefits under this chapter, shall . . . (b) Be capable of, available, and actively seeking work in his usual occupation or any other occupation for which he is reasonably fitted . . . .  

As a state agency administering the unemployment insurance programs, we must also abide by U.S. Department of Labor (DOL) regulations governing eligibility for unemployment insurance. These regulations require that a non-citizen must be legally authorized to work by the appropriate U.S. agency in order to be considered “available for work.” Specifically, 20 C.F.R. 
§ 604.5 — Application — availability for work, provides, in relevant part, as follows:  

(f) Alien status. To be considered available for work in the United States for a week, the alien must be legally authorized to work that week in the United States by the appropriate agency of the United States government.  In determining whether an alien is legally authorized to work in the United States, the State must follow the requirements of section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)), which relate to verification of and determination of an alien’s status. 

Thus, in order to determine that the claimant was available for work under G.L. c. 151A, § 24(b), the claimant must show that, during her benefit year, she was legally authorized to work by the appropriate U.S. agency, currently the U.S. Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS). Here, the claimant seeks unemployment benefits under a claim effective June 8, 2025. Consequently, the claimant must show that she was authorized to work during her benefit year, beginning June 8, 2025.

The facts establish that the claimant, a citizen of Canada, entered the United States on a TN visa to work for a specific employer, [Employer A], in August of 2023. See Findings of Fact 1, 2, and 3. Under her TN status, the claimant was authorized to work in the United States for three years. See Finding of Fact 3. However, the claimant separated from [Employer A] on December 15, 2024, prior to the expiration date listed on her TN visa. See Findings of Fact 3 and 5.

A TN nonimmigrant classification permits qualified citizens of Canada and Mexico to temporarily enter the U.S. to engage in business activities at the professional level in accordance with an agreement between the U.S., The United Mexican States, and Canada (USMCA). See 8 C.F.R. § 214.6(b). They may be authorized to work for a specific employer. See 8 C.F.R. § 274a.12(b)(19). Upon cessation of employment, individuals admitted under a TN classification are granted a grace period to remain in the United States, either 60-days or until their TN status expires, whichever is shorter. During this grace period, they are not authorized to work in the United States. See 8 C.F.R. § 214.1(l)(2). 

A TN nonimmigrant Canadian or Mexican citizen may request approval from DHS to work for a different employer. However, the individual is not authorized to work until DHS approves that request. See 8 C.F.R. § 214.6(i)(1). This would seem to disqualify the individual from receiving benefits under G.L. c. 151A, § 24(b). However, there is an exception for claimants from Canada. 

TN nonimmigrant Canadian citizens who worked for a Massachusetts employer and earned qualifying wages may file a claim in Massachusetts pursuant to the Interstate Benefit Payment Plan and 430 CMR 4.05(7), even if they return to Canada.

In the present case, the claimant worked for a Massachusetts employer as an economist on a TN Canadian visa. See Findings of Fact 1, 2, 3, and 5. She returned to Canada following her separation and remained unemployed until January 26, 2026. See Findings of Fact 6 and 11. Although she was not authorized to work in the United States during her period of unemployment, she could still satisfy the requirements of G.L. c. 151A, § 24(b), provided that she was capable of, available for, and actively seeking work in Canada.   

Nothing in the record suggests that the claimant was incapable of working. During the hearing, the claimant testified that she had been actively searching for work in Massachusetts and in Canada and had performed a minimum of five work search activities each week. 

We, therefore, conclude as a matter of law that the claimant has met her burden to show that she was available to work withing the meaning of G.L. c. 151A, § 24(b), during her benefit year. 

The review examiner’s decision is reversed. The claimant is entitled to receive benefits for the week ending June 14, 2025, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – June 11, 2026

1. The claimant’s Massachusetts Identification Card, issued on December 6, 2023, is Exhibit # 7. While not explicitly incorporated into the review examiner’s findings, this exhibit is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today. See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).
2. See Agreement between the Government of Canada and the Government of the United States of America, Effective 1942, Amended 1951, available on the U.S. Department of Labor’s website at http://www.workforcesecurity.doleta.gov/unemploy/pdf/agree_us_and_canada.pdf. This treaty expressly permits Canada to participate in the Interstate Benefit Payment Plan. 
3. The DUA’s electronic record keeping system shows that the claimant had earned sufficient wage credits based on the reported earnings from her Massachusetts employer. The agency determined the claimant to be monetarily eligible for benefits in a determination issued on August 18, 2025.
4. We acknowledge that our legal reasoning differs from past Board decisions regarding the availability requirements of Canadian TN claimants. See, e.g., Board of Review Decision 0072 3695 84 (Nov. 8, 2023) and Board of Review Decision N6-FM8M-2D7P (Apr. 9, 2021). Because those cases do not align with current immigration regulations and 430 CMR 4.05, we decline to follow them as precedent. 
5. This portion of the claimant’s testimony is also part of the unchallenged evidence introduced at the hearing.

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court.
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

Visit this page to locate the nearest Massachusetts District Court.

Please be advised that fees for services rendered by an attorney or agent to a claimant in connection with an appeal to the Board of Review are not payable unless submitted to the Board of Review for approval, under G.L. c. 151A, § 37.

DY/rh