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Illegal immigrants can file Workmen Compensation Claims and Personal Injury Lawsuits

Posted by Gutierrez Law Firm on April 17, 2013

Guest post by Lauren Williams, staff writer at

The general rule is that an alien who is in the United States unlawfully has no rights under the United States Constitution to equal opportunity of employment such as is enjoyed by lawfully resident aliens and he has no constitutional right to work.  Thousands of illegal immigrants are working in the United States either in the factories or farms.  If an illegal immigrant suffers an injury at the job site as a result of employer’s negligence or intentional conduct, can he file a workmen compensation claim for the benefits?

In a recent case – Wielgus v. Ryobi Techs., Inc., 875 F. Supp. 2d 854 (2012)the Federal District Court for the Northern District of Illinois, Eastern Division held that the Immigration Reform and Control Act (IMRCA) did not preempt Illinois law allowing undocumented aliens to recover damages for lost earnings at residence country wage rates.  It is the IMRCA that prohibits the employment of the illegal aliens in the US.

The Court of Appeals of Georgia in Earth First Grading v. Gutierrez, 270 Ga. App. 328 (2004) rejected the claim of an employer that an illegal alien was not entitled to workers’ compensation benefits because he could not enter into a legal employment contract and therefore was not an “employee” under O.C.G.A. § 34-9-1(2).  The Court further held that the definition of ‘employee’ under Georgia Workmen Compensation Act includes every person and every person necessarily includes illegal aliens.

Many states have concluded that neither U.S. Supreme Court precedent nor the Immigration Reform and Control Act of 1986 intended to prohibit the awarding of workers’ compensation benefits to illegal aliens.

In a 2005 case – Rosa v. Partners in Progress, Inc., 152 N.H. 6 the Supreme Court of New Hampshire held that the illegal immigrants are eligible to access to the courts and entitled to sue therein to enforce contracts and get remedy for civil wrongs such as negligently inflicted personal injuries.

Normally the illegal immigrants’ lost earning capacity is measured by what the alien could have earned lawfully working in his country of origin.  In Rosa, the Supreme Court of New Hampshire agreed that in some circumstances the lost earning capacity of the illegal immigrants may be measured by what the alien could have earned in the United States.  If the person recruited the employee knew or should have known the employee’s illegal alien status and permitted the employee to work, the employee is eligible to recover compensation under workmen compensation statutes.

The illegal immigrants can also file personal injury lawsuits for other injuries suffered by him such as injuries from slip and fall accidents, medical malpractice etc.

There is a common concern among illegal immigrants that whether the filing of the workmen’s compensation claim or other personal injury lawsuit will result in their deportation.  The filing of the workmen compensation claim or injury lawsuit alone will not lead to the deportation of the illegal immigrant.  A workmen’s compensation claim or personal injury lawsuit is focused only on the injury of the claimant and not his resident status.

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