The Blog

Does being an illegal alien or an undocumented worker prevent me from getting workers’ compensation?

No, the mere fact that you are not in the USA legally does not prevent you from collecting compensation under the Pa WC Act. But, there are a number of things that you should be aware of if you are an undocumented worker.

First, your undocumented status could be revealed during the litigation of your claim. If this information gets into the hands of INS, you could be deported.

Second, wages are many times paid in cash to undocumented workers which will likely create an issue with the IRS because no taxes were paid on this income.

Third, the employer is less likely to bring you back to work after you recover from your work injury if he discovers during the litigation of your compensation claim that you are undocumented.

Fourth, in order for an employer to suspend an undocumented worker’s compensation, the employer only has to show that the injured worker was medically cleared for some work. The employer does not have to show that he has a job opening that the undocumented worker could do or, show job availability through a Labor Market Survey ( LMS ) because it’s presumed that work isn’t available to the undocumented injured worker due their undocumented status. In contrast, with an injured worker who is legally in the USA, the employer would first have to show that the injured worker was cleared medically for some kind of work, and then show that the employer has a job within the injured worker’s restrictions or, show job availability through a LMS. 

The issues involved in the litigation of compensation claims with undocumented workers tend to be complex. For instance, an employer cannot force an undocumented worker to waive his 5th Amendment right against self-incrimination by asking him to admit his undocumented status in court. The employer must get this information into evidence by some other means if they intend to use it limit the claim. It is important that you get advice from an experienced workers’ compensation attorney if you find yourself in this situation.