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Can Undocumented Immigrants Get Workers' Comp?

By Christopher Coble, Esq. | Last updated on

According to the U.S. Department of Homeland Security, undocumented immigrants make up 3.5 percent of the United States' population. In California alone, undocumented immigrants make up 10 percent of the workforce.

With so many undocumented immigrants in the workforce, it is inevitable that some will get injured at work. But, can undocumented immigrants get workers' compensation?

Immigration Reform and Control Act (IRCA)

Undocumented immigrants are not legally authorized to work in the United States. The Immigration Reform and Control Act (IRCA) is a federal law that requires employers to verify their employee's eligibility to work in the United States. IRCA imposes heavy sanctions on employers who knowingly hired unauthorized employees. Multiple violations could cost an employer as much as $10,000 for each unauthorized employee.

In many cases when undocumented immigrant employees were injured at work, employers tried to use IRCA to deny undocumented employees workers' compensation. Employers argue that since the undocumented workers aren't authorized to work in the United States, they are not legally employees and ineligible for workers' compensation.

State Laws

Despite employers' reliance on IRCA, many states laws make undocumented immigrants eligible for workers' compensation.

In many states, undocumented immigrants can get workers' compensation because the state's statute specifically includes undocumented employees. For example, Arkansas' workers' compensation specifically states, "employee means any person, including a minor, whether lawfully or unlawfully employed in the service of an employer." Other states with statutes that expressly include undocumented immigrants include Arizona, California, Colorado, Hawaii, North Carolina, Tennessee, and Texas.

The Exception

In Wyoming, undocumented immigrants are not allowed to collect workers' compensation.

While the wording of Wyoming's statute seems to include undocumented immigrants when it defines employees as "aliens whom the employer reasonably believes, at the date of hire and the date of injury based upon documentation in the employer's possession, to be authorized to work by the United States" Wyoming's Supreme Court specifically ruled in In Re: The Worker's Compensation claim of Adrian R. FELIX that "an alien who is not authorized to work in the United States is not an "employee" ... and is not covered by Wyoming's workers' compensation."

If you've been injured at work and are unsure of your eligibility for workers' compensation, consult with an experienced personal injury attorney for a case evaluation.

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