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Can Undocumented Workers Receive Workers’ Compensation?

Undocumented workers are just as likely to be injured on the job as other workers who are legally allowed to work in the United States. However, when they are injured, undocumented workers may be hesitant to apply for the workers’ compensation benefits they are entitled to because they are afraid that will lead to them losing their jobs or being deported. Some workers also argue that undocumented workers should not receive benefits because they are not really employees, as they are not legally permitted to work.

States have their own laws governing workers’ compensation, and can include undocumented employees into the definition of qualifying employees under the law. California’s workers’ compensation law does this, and therefore, undocumented workers who are qualifying employees are eligible for workers’ compensation benefits.

If the undocumented worker is an independent contractor, he or she cannot receive these benefits because they are only available to workers who qualify as employees. In some cases, the employer may improperly label an employee as an independent contractor. In those cases, a court can determine if the employee is properly classified.

If an undocumented worker does not qualify as an employee for workers’ compensation purposes, he or she may still file a personal injury lawsuit against the employer and anyone else who is liable for injuries sustained in a workplace accident. As with workers’ compensation benefits, a person’s immigration status is not a factor in who is allowed to file a personal injury lawsuit in California, and undocumented immigrants can legally file lawsuits.

While the law allows undocumented workers to collect workers’ compensation benefits, it may be difficult to do so in reality. Some employers may threaten to report workers who claim these benefits to immigration officials. This can force workers to forgo important rights in order to avoid deportation. Unfortunately, undocumented workers may be deported even if they have a valid claim against their employer, and the employer’s action in trying to blackmail the worker would not be applicable as a defense to deportation.

However, workers should remember that the employer also faces fines under the federal law for hiring undocumented workers. The employer’s threat may be just that, a threat, because the employer may not want to bring attention to his or her employment practices. Undocumented workers who believe they have a workers’ compensation case should seek advice from a workers’ compensation attorney.

Undocumented workers have additional workplace rights regardless of their immigration status. If an undocumented worker feels unsafe due to workplace conditions, he can file a complaint with the California Department of Industrial Relations.

Contact Us for Employment Related Immigration Issues

All workers should be protected and offered a safety net in case they get injured on the job. Being an undocumented worker in California does not mean that you do not have workplace rights. If you have any immigration issues related to working in the United States illegally, we may be able to provide legal assistance. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.

A Green Card Does Not Always Prevent Deportation

Getting a permanent residency card can signal a new beginning for many immigrants seeking to settle in the United States. It sometimes takes years to get through the application process and can be expensive, depending on the circumstances of the applicant. Unfortunately, while legal or lawful permanent residency guarantees more for immigrants in the country, it is not a guarantee against deportation. In some instances, even legal permanent residents can be deported.

A person who is granted lawful permanent residency is allowed to live and work in the United States permanently. A person can become a lawful permanent resident through an application by an eligible family member, a job, as an asylum seeker or refugee, and through a few other special categories. Some applicants receive conditional permanent residency, for example if applying through marriage. After some time, the conditional status can be removed. Once permanent residency has been granted, a lawful permanent resident can go on to complete the naturalization process and become a citizen.

For an immigrant on conditional permanent residency status, committing crimes such as fraud can lead to removal proceedings and deportation. For example, if your conditional status is based on marriage, and the government learns that your marriage was a sham entered into for the sole purpose of getting you a green card, the government can terminate your conditional status and begin removal proceedings.  During removal proceedings, you have a chance to seek a review of your case in order to prove that you are not guilty of fraud.

A lawful permanent resident can also lose permanent residency by being absent from the United States for a long period of time. If a person is gone for about six months or more without re-entry into the United States, he or she may not be allowed back into the country. To avoid this result, a lawful permanent resident can apply for a special re-entry permit before leaving the United States, or make sure that he or she is not absent from the country for an extended period of time.

Removal proceedings for lawful permanent residents can be initiated if the lawful permanent resident is convicted of what is described as a crime of violence. A person who is convicted of murder is permanently barred from naturalization. The definition of what constitutes a crime of violence is hard to pin down because in some instances it could mean that someone who commits a robbery and is convicted may be deported, and yet someone with an unregistered gun may not.  This sort of ambiguity is being challenged in front of the United States Supreme Court, and a decision is awaited that will hopefully set out more clear guidelines as to which crimes may make a lawful permanent resident eligible for deportation.

Lawful permanent residents can also voluntarily choose to relinquish their status by filing United States citizenship and Immigration Services (USCIS) Form I-407.

Contact an Experienced Immigration Attorney

Receiving a green card is a significant step towards gaining citizenship. If you are a lawful permanent resident facing removal proceedings you can fight your removal at the hearing. For more information, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.