Can Undocumented Workers Receive Workers’ Compensation Benefits

With over 20,000 undocumented immigrants in Delaware’s workforce, it is inevitable that some will get hurt at work. This presents the question: Can undocumented workers receive workers’ compensation?

Unauthorized or undocumented immigrants are those who are foreign-born non-citizens and not legal residents. In 1986, Congress implemented The Immigration Reform and Control Act also known IRCA. This federal law regulates the employment of foreign workers. It designates the requirements necessary for an individual to legally work in the United States, as well as the requirements employers have to take when hiring an individual.

Different from State to State

Though the Immigration Reform Control Act is a federal law, the interpretation of this law varies from state to state. Arkansas defines an employee as “Any person, including a minor, whether lawfully or unlawfully employed in the service of an employer”. Many states have ruled in favor of the undocumented immigrant who is injured in the course and scope of his or her employment. Courts have ruled that the undocumented employee should not be denied workers’ compensation benefits if hurt on the job due to the employers failure to abide by the requirements for verifying eligibility of employment. However, some state courts such as Arizona and Wyoming, have held that “an undocumented immigrant cannot legally enter into an employment contract therefor is not an employee”.

In the State of Delaware, an undocumented worker who is injured in the course and scope of his or her employment is entitled to making a claim for rights under the State’s workers’ compensation statute. While state laws vary, depending on the jurisdiction, undocumented workers should seek legal advice if injured on the job.



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