Kevin Kampschror, Esq.
Here is a hypothetical: a farming company decides to temporarily employ
Mexican citizens to do farming and agriculture work at a heavily discounted
labor rate of $11.37 per hour. The farming company paid for the H2-A visa
and also provided bunk-style housing. As you could guess, this form of
labor is likely much cheaper than hiring United States citizens for this
type of work.
One worker named Julio gets injured less than thirty (30) days prior to
his H2-A visa expiring. Julio was injured while taking out trash and was
run over by a tractor, causing fairly serious injuries. Workers on H2-A
visas do qualify for workers’ compensation if injured on the job,
and this case was no different. However, due to the severity of the injury,
the doctor who treated Julio gave him restrictions that the farming company
would then have to be able to accommodate. The insurer accepted the claim,
but then sent correspondence to Julio stating that because his visa was
about to expire, they could no longer pay him. Why? Although they actually
did have light duty work available, because his visa was about to expire
– the visa the company paid for – Julio would not be able
to accept the light duty work because he would then become undocumented
once his visa is expired.
See Tarango v. SIIS, 117 Nev. 444 (2001). Furthermore, the insurer then essentially ended claim,
giving him a directive to find a doctor in Mexico for further treatment
and let the insurance company know if they would take the Nevada fee schedule…
in Mexico! In other words, thank you for your service and work in our
country, Julio – here is a broken leg, and we are shipping you back
to Mexico for you to obtain treatment on your own because the company’s
“hands were tied” regarding the visa.
Even with all of the discussion about undocumented people in this country,
surely this is not a scenario that anyone thinks of. In fact, the company
and the insurer are likely taking advantage of the immigration system
to save money and not have to offer benefits that they would have to offer
if the circumstances were different. To me, the company used their power
to exploit Julio and then wash their hands of the claim due to a visa
problem they could have fixed. If the company and insurer are claiming
their “hands were tied,” I certainly would like to see how
clean those hands are.