The role workers’ comp plays in your immigration status in Arizona
The rights of natural-born citizens and immigrants differ in a number of ways, leading some to question the workers’ compensation rights of non-citizens.
It’s common for people to assume that non-citizens, particularly undocumented immigrants, aren’t eligible for workers’ compensation benefits. However, workers’ comp is a safety net for most working individuals in Arizona to support their families from financial hardship if injured on the job—including undocumented workers.
This protection exists for workers regardless of personal factors of immigration status or nation of origin. If an employer hires you, denying you benefits is not allowed—nor is attempting to retaliate against you for seeking the benefits you need.
Workers’ comp laws vary by state
The entitlement to workers’ compensation depends largely on state law.
Many states have laws stating that any worker, regardless of immigration status, is eligible for workers’ compensation if an injury occurs that falls under the rules described in workers’ compensation law. The opinion of these states is that the law is necessary to avoid the incentive for employers to hire undocumented workers to avoid paying workers’ comp premiums.
Courts reason that state workers’ compensation law is not preemptive of the Immigration Reform and Control Act (IRCA). IRCA is an Immigration and Nationality Act amendment introduced to control the alarmingly high illegal immigration rates. The holdings are consistent, not contradictory, with federal law.
Can reporting an accident at work lead to deportation?
Often, undocumented immigrants work in difficult and dangerous jobs, making them more at risk for injuries on the job. Sadly, many of these workers are hesitant to report work-related injuries out of an overwhelming fear of deportation for filing a claim. However, it’s important to understand:
Undocumented workers are eligible to receive workers’ compensation benefits, even if they are illegally working in the U.S.
Federal law requires employers to refuse to hire undocumented workers or terminate (fire) an undocumented worker upon learning of their immigration status. The requirement has no bearing on the workers’ eligibility for workers’ compensation benefits. Yet, many employers attempt to dissuade undocumented workers from filing for benefits.
Fines and other sanctions result when the government becomes aware of an employer hiring undocumented employees. These penalties motivate employers not to hire undocumented workers.
Filing a claim is not an automatic trigger for immigration officials to get involved. Involvement usually occurs when an employer reports the worker to U.S. Immigration and Customs Enforcement (ICE) in retaliation for filing a claim.
Does reporting a claim hurt your pending immigration case?
If an employer turns injured undocumented employees in to ICE, they may face deportation. Some undocumented immigrants have the authorization to work if there is a pending immigration case, Temporary Protected Status or have Deferred Action.
For example, when applying for a green card via a U.S. citizen spouse, undocumented workers may be protected from deportation. Similarly, those applying for asylum sometimes get permission to work for a specified length of time while waiting for the verdict of a pending case. It’s best for employers and immigrant workers to consult with an immigration lawyer for counsel on these issues.
Employers who want to hire undocumented immigrants have the option of seeking to sponsor a potential employee for a work-related visa. There are several types of work visas, though the H-1B visa is the most common.
Are undocumented workers entitled to workers’ comp benefits?
It’s the undocumented worker’s right to receive compensation whether they a green card, use a fake ID, are paid in cash or if the employer has no workers’ compensation insurance.
Immigration status is not a factor in applying for workers’ compensation benefits in Arizona.
However, the undocumented worker needs to act quickly. You need to file a claim within 1 year from the date the injury occurred. Delays have the potential of preventing you from getting the maximum benefits you are entitled to under Arizona law.
Steps for undocumented immigrants to follow
If you have the authorization to work, report the injury as soon as possible. Ask for an incident report copy to prove you took the necessary and appropriate steps if your employer tries to challenge your claim for benefits. Be sure to get legal help when filing for benefits.
Also, keep detailed records of everything you remember about the incident, separate from your employer’s records. A videotaped or written statement regarding what happened, witnesses who saw what occurred and management members who received the report can help validate your claim.
Filing for workers’ compensation in Arizona is complicated enough, but the stakes are raised when the injured party is an undocumented worker. Reach out to our team at the Law Office of Robert E. Wisniewski today if you need help. We are ready and willing to help you fight for your rights.