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The Immigration Problem in Workers’ Compensation

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By: 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.

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