DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of The California Lawyer’s Section, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
By David Skaggs
The Workers’ Compensation Quarterly is the official publication of the Workers’ Compensation Section, which was formerly associated with the California State Bar and is now associated with the California Lawyers Association. For 30 years until her retirement from the Quarterly in 2017, Lynn P. Peterson did a masterful job editing the publication. Following Lynn’s retirement, Anthony J. Macauley picked up the reins as editor of the publication before our current editor, Randy H. Pollak, assumed the role, a role that continues a tradition of being voluntary and uncompensated.
Introducing the New Editor of the Quarterly … Randy first got a taste of California’s workers’ compensation system when he worked in the office of a state legislator and, later, when he clerked at a workers’ compensation law firm while attending law school. He’s now approaching a decade as a workers’ compensation practitioner. Randy also happens to be a 2016 recipient of the Workers’ Compensation Section’s “Young Attorney of the Year Award.”
Randy has expressed that his goal as editor of the Quarterly is to modernize the publication as the Section transitions away from the State Bar and into the CLA, and to strive to present a publication that represents all viewpoints. In this latter respect, Randy encourages anyone with an interest in the system and a penchant for writing to submit an article for consideration for publication. He also stressed that as much as he will strive to ensure that the Quarterly represents a balance of viewpoints, ultimately, the Quarterly will reflect the makeup of its authors, i.e., those that volunteer to write publishable articles.
You are invited to be a part of our history! Enjoy the opportunities and benefits of attending the inaugural California Lawyers Association Annual Meeting on September 14 and 15, 2018 at the Sheraton San Diego Hotel and Marina, 1380 Harbor Island Drive, San Diego.
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By Nikki Mehrpoo Jacobson
Certified Legal Specialist in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization
AN INJURED WORKER MAY BE ELIGIBLE FOR LEGAL STATUS (U-VISA) IN THE UNITED STATES AND WCJs MAY HAVE AN INTEGRAL ROLE IN THE PROCESS**
(**Please note that this article is limited to the U Visa. Injured Workers may also be entitled to T Visa benefits)
The issue of “violent acts” and “catastrophic injuries” have been a hot topic of discussion ever since LC 4600.1 came into effect. Essentially, WPI increases are barred for injured workers claiming psych injuries that are compensable consequences of orthopedic injuries. However, if an exception applies, such as a “violent act” or a “catastrophic injury,” the injured worker will be able to obtain an increase in WPI, as well as medical treatment and temporary disability benefits.
Regardless of whether the applicant is eligible for WPI increases or not, what is not as well-known is that undocumented injured workers can file for legal status (U Visa) in the United States as a result of workplace related criminal activity or violence. The crime or violence does not have to be a violation of the penal code but a violation of administrative rules and regulations. This visa was specifically created to benefit victims of criminal activity or violence, including victims injured on the job. Congress has concluded that the U visa “will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute [crimes] committed against aliens, while offering protection to victims of such offense in keeping with the humanitarian interests of the United States.” Pub. L. No. 106-386, Div. B, Title V, § 1513(a)(1)(A)-(B), Oct. 28, 2000, 114 Stat. §1513(a)(2)(A) (emphasis added)
There are situations where an undocumented worker has been violently injured, victim of a crime or sexual harassment at the workplace. Unfortunately, it is common for these injured workers to refuse to file a claim when this happens, for fear they may lose their jobs, or worse, lose their families and be subject to the wrath of immigration agencies and be deported.
It is important for these injured workers to know that they are eligible to pursue benefits in both the workers’ compensation and immigration systems.
An injured worker may be eligible for a U visa by submitting a certification by a certification entity (Judges [civil, criminal, administrative judges], local law enforcement agencies, any other civil, criminal or administrative authority involved with criminal activities or civil/administrative violations, including, Department of Industrial Relations and labor code violations) that verifies that she was a victim of the criminal activity or violence and is willing , or is likely to be helpful in the investigation or prosecution of the crime committed against her. See INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U)(i)(III). It is crucial to note that a victim may request and receive certification despite lack of a current investigation, the filing of charges, a prosecution or a conviction.
In addition, by signing the I-918 Supplement B certification, a Workers’ Compensation judge is not granting the injured worker a visa to reside legally in the United States. To the contrary, only U.S. Citizenship and Immigration Services (“USCIS”) is authorized to issue U visas. The I-918 Supplement B certification is submitted with the U visa application and other supporting documentation to CIS for its review and ultimate determination. In addition to the certification, the victim must also satisfy USCIS that she has satisfied the requirement that she was, is, or is likely to be helpful in the investigation or prosecution of a crime.
In order for USCIS to determine if an injured worker is eligible for a U visa because he/she meets the following requirements in addition to the required certification:
The enumerated crimes include the following:
*Includes any similar activity where the elements of the crime are substantially similar.
†Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.
Not all WCJs are aware of this process, and may be reluctant to certify the request which is essential for the U-Visa application. Therefore, attorneys should carefully review the procedure for doing so:
COMMON WORKPLACE CRIMINAL ACTIVITIES:
The following are examples of common workplace criminal activities by the employer, coworkers, clients, customers or agents of the employer which can make the injured worker eligible for U Visa certification:
LEGAL AUTHORITY & RESOURCES
If you have further questions or inquiries about important immigration and workers’ compensation crossover issues, feel free to contact the author Nikki Mehrpoo Jacobson via email at N.Jacobson@rkmlaw.net
© 2018 by Nikki Mehrpoo Jacobson. All rights reserved
As a benefit of Section membership, the state bar is pleased to offer six hours of MCLE credit, offering credit in all of the MCLE subfields, Elimination of Bias in the Legal Profession, Detection and Prevention of Substance Abuse and Emotional Distress and Legal Ethics. Just watch these programs found at this link, and keep a record of having done so, in the event you're audited for MCLE compliance.
State Bar Workers’ Comp Section members may also use the link to access a plethora of our most popular articles from our publications.