Undocumented Injured Workers Need Extra Vigilance From Their Attorneys
Undocumented injured workers must be ready to avoid potential immigration consequences when claiming workers’ compensation benefits . Their attorneys must know the worker's rights and options under the Immigration and Nationality Act ("INA") as well as the Labor Code.
California Law Protects All WorkersThe Labor Code defines employees as specifically including undocumented workers. Lab. Code sec. 3351. Labor Code sec. 1171.5 makes clear that with the exception of the right to reinstatement, immigration status is irrelevant to all other rights and remedies available under the law. As such, questions directed to injured workers that go to immigration status or authority to work are not only irrelevant to the workers' comp action but may also be subject to the 5th Amendment privilege against self-incrimination and therefore should not be answered, especially on the record.
And yet, during the discovery phase of the case, other questions are often asked of the injured worker that, while seemingly innocuous, may still have the potential to negatively impact an undocumented worker's pending or potential immigration case.
Issues Related to How Employment Was ObtainedThe defense in a workers' comp case has a legitimate right to conduct discovery by, for example, taking the worker's deposition - a question and answer session where the injured worker answers questions under oath. But depositions can be peppered with questions that an undocumented worker should avoid answering or ought to answer in a way that best avoids unintended consequences.
Generally, an undocumented worker should never answer questions asked by defense counsel that have to do with how employment was obtained. First, this is irrelevant to the issues that matter in a work comp case. Second, the answers could subject the worker to criminal or immigration sanctions. For example, if the undocumented worker made false statements on federal employment forms, this could be charged as fraud and may subject the worker to both criminal and immigration consequences. And severe immigration penalties would attach to an admission by the worker that he or she falsely claimed to be a U.S. citizen in order to obtain employment.
Similarly, answering questions that detail how a Social Security Number was obtained or who it may belong to are similarly irrelevant and problematic for the undocumented injured worker. Answers to these questions may be used against the worker in criminal proceedings under Cal. Penal Code sec. 529 [impersonating another person] or sec. 530.5 [illegal use of another's personal information] or under federal criminal statutes. And even though successful criminal prosecution under these laws may be difficult especially if the worker did not knowingly use another person's Social Security Number, answering these types of questions may still carry immigration consequences.
For these reasons, an attorney hired by an undocumented injured worker must be aware of these potential issues and be ready to defend the applicant from questions that could pose problems for the worker outside of the workers' compensation context.
Immigration-Related IssuesAnother common line of questioning that comes up in a workers' compensation deposition is about travel to and from the United States. Usually, the issue behind these questions is apportionment - whether any other injury or injuries suffered by the worker could be responsible for his or her symptoms -- a legitimate and relevant issue to a workers' comp case. However, for an undocumented injured worker, admitting to absences from the United States can have important consequences to his or her immigration case.
First, testifying to a date when the worker first entered the United States may limit that same worker from later asserting certain defenses or claiming certain benefits under the INA. This is so because many avenues of relief in immigration are dependent on when someone was first present in the United States. Moreover, testifying to an illegal entry carries immigration consequences as well, for example, 8 U.S.C. sec. 1325 which makes illegal entry an offense punishable by fine, imprisonment or both. Thus, counsel for an undocumented injured worker must be ready to object to these questions if asked and as appropriate.
Second, testifying to periodic absences from the United States may carry even more serious consequences. The most obvious is that repeated illegal entries trigger sections of the INA which could bar the immigrant from the United States for up to 10-years without a waiver. This is commonly referred to as the "permanent 10-year bar" under INA sec. 212(a)(9)(C).
Finally, if the worker has a prior order of deportation and testifies to illegal re-entry thereafter, criminal charges as well as severe immigration penalties may apply.
For these reasons, it is imperative that if an undocumented injured worker hires an attorney to represent him or her in a workers' comp case that the attorney know about the client's immigration status. The attorney should also be aware of how the discovery phase in the workers' comp case could negatively impact any immigration case the client may have now or in the future.