Undocumented Alien Claims: Finding a Place to Stand

April 2, 2001

Presented at the ICLE Workers’ Compensation Judges Annual Seminar in Jekyll Island, Georgia, on April 2, 2001, by T. Mills Fleming.

I. Introduction

The United States’ immigration policies have changed dramatically over the last 200 years from being a virtual open door to now being a tightly controlled and highly regulated set of rules and regulations. The first law limiting immigration was the Alien Act of 1798 wherein the president was authorized to expel any alien he deemed dangerous. From that time until the later part of the 19th century, Congress passed very little laws restricting immigrant flow to the U.S.

Beginning in 1875 Congress passed several immigration reform measures beginning with a statute providing for the exclusion of convicts and prostitutes. That law was followed by the Chinese Exclusion Act of 1882 which provided for the exclusion of persons from China – and was not repealed until 1943. Congress passed other laws to exclude cheap foreign labor and in 1888 provided for the deportation of aliens entering in violation of these contract labor laws.

Although the immigration laws developed slowly for the next 60 years and seemed to be more reactionary to particular concerns, it was not until 1952 that the McCarran-Walter Act passed which formed the basis of our modern immigration laws.

With the continued increase of both legal and illegal immigrants (in a recent New York Times article, the estimate of illegal aliens in New York City was 500,000), Congress and the judicial system will continue to be challenged in adjudication the rights of these individuals and determining just how much of an open door the United States needs to be.

With this introduction, the focus of this lecture will be to familiarize you with the source of federal power over the immigration laws and to examine how illegal aliens are treated for state workers’ compensation purposes. Moreover, we will examine a judge’s duty to report the presence of an illegal alien to the INS and whether such an action exposes the judge liability. I will conclude my presentation with an overview of various immigration classifications for both immigrant and nonimmigrant aliens.

II. Sources of Federal Power Over Immigration

A. Enumerated Powers (1-4) and Implied Powers (5 and 6)

1. The Commerce Clause – Art. 1, § 8, Cl. 3 of the Constitution authorizes Congress to “regulate commerce with foreign nations and among the several states.”

2. The Naturalization Clause – Art. 1, § 8, Cl. 4 of the Constitution gives Congress the power to “establish a uniform rule of naturalization.”

3. The Migration and Importation Clause – Art. 1, § 9, Cl. 1 of the Constitution deals with limiting migration and importation of “such persons as any of the states now existing shall think proper to admit” after 1808. Clause deals with slaves, not immigrants, but language does not limit it to slaves.

4. The War Power – Art. 1, § 8, Cl. 11 of the Constitution gives Congress the power to declare war including the power to stop the entry of every alien and to expel them from the U.S.

5. In U.S. v. Curtis-Wright Export Co., 299 U.S. 304 (1936), the Court provided the broadest support for the inherent power of the federal government to regulate foreign affairs.

6. In Wong Wing v. U.S., 163 U.S. 228 (1896), the Court held that the Fifth Amendment applies to “persons,” not to citizens, and excludable aliens are protected by the Constitution in certain circumstances, including criminal matters. Resident aliens are also entitled to important constitutional rights guaranteed under the equal protection and due process clauses. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Moreover, they are entitled to First Amendment rights. Bridges v. Wixon, 326 U.S. 135, 161 (1945).

B. State vs. Federal Government

1. Compare Graham v. Richardson, 403 U.S. 365 (1971)(state statute providing greater restrictions on lawful permanent residents than U.S. citizens in welfare benefits is in violation of the Constitution) with Matthews v. Diaz, 426 U.S. 67 (1975)(Congressional statute requiring residency for 5 years to obtain federal medical insurance benefits held Constitutional).

2. Greater deference is given to the federal government when it draws distinction in immigration matters than in other areas. Fiallo v. Bell, 430 U.S. 787 (1977). This deference may carry over to the states where the challenge involves a federal/state cooperative relationship in regard to immigration. Isaraphanich v. Coughlin, 716 F.Supp. 119 (S.D.N.Y. 1989). This deference is not absolute, especially where issues of citizenship come into play. Lebrun v. Thornburgh, 777 F.Supp. 1204 (D.N.J. 1991).

III. Can Workers’ Compensation Benefits be Awarded to an Alien who Has Been Unlawfully Employed?

A review of various cases shows that there is a dearth of law in Georgia which addresses whether an undocumented alien is either eligible or entitled to workers compensation benefits. We can only speculate why this is the case, but we can assume that employers are now becoming more sophisticated in challenging the rights of these aliens. It is also possible that undocumented aliens are less likely to pursue their claims for fear of being deported. That being said, the INS estimates 6 to 8 million undocumented immigrants were living in the United States. In 2000 the INS believed that 300,000 undocumented Mexicans entered the U.S. In 1996 Georgia ranked 17th in the nation with a population of about 32,000 illegal aliens. As one can imagine, precise statistics are difficult to obtain. With this background in mind, what follows is a review of the relevant law on the subject.

A. The Dynasty Decision

In Dynasty Sample Co. v. Beltran, 224 Ga. App. 90, 479 S.E.2d 773 (1996), the employer argued that an illegal alien who suffered work injuries, but who was found to have obtained his employment through making false statements or submitting false documents, should be denied benefits. The Court of Appeals held that the employer could not deny the alien such benefits where there was no causal connection between the alien’s false representation of his eligibility to work and the injury for which the employee was seeking benefits. This opinion, however, does not specify whether undocumented workers are, as a matter of law, entitled to benefits.

The Dynasty court relied on the three part test set forth in Georgia Electric Co. v. Rycroft, 259 Ga. 155, 378 S.E.2d 111 (1989), to determine whether the alien employee was entitled to benefits under the Workers’ Compensation Act. In other words, unless the employer can demonstrate that (1) the employee knowingly and willfully made a false representation applying for work (2) the employer relied on the false representation and this reliance was a substantial factor in the hiring decision, and (3) there was a causal connection between the false representation and the injury, the employee is eligible for benefits.

B. Who is an “Employee” in Georgia for Workers’ Compensation Purposes

Does an undocumented alien meet the definition of being an “employee” under the the Workers’ Compensation Act? The language of the Act does not specifically include an undocumented worker or illegal alien under the definition of “employee.” See OCGA § 34-9-1(2). A footnote in Dynasty, however, supports the argument that an undocumented worker can be an “employee.” (“The fact that traditional contract principles are not always applicable in determining whether a person is an ‘employee’ for purposes of recovering workers’ compensation benefits is further evidenced by the definition of ‘employee’ found in OCGA § 34-9-1(2), which includes minors working under contracts that are illegal based on child labor laws, and thus traditionally would be void or voidable.”)

C. Who is an “Employee” for Immigration Purposes

Under 8 CFR §§274a.12-14 three categories of immigrants are eligible to be employees: (1) persons authorized incident to their status (i.e., TPS, fiancee and LPR); (2) persons authorized incident to their status with a specific employer (i.e., H-1B, E, L, etc.) and (3) persons who must apply for employment authorization (i.e., asylum applicant). Employers who knowingly hire aliens who do not have authorization to work in the U.S. violate INA §274A and are subject to civil fines and possible criminal penalties.

Aliens must have authorization to work from the INS and, absent such authorization, they are in violation of their status. As a result, such aliens render themselves deportable for failing to abide by the terms and conditions of their stay. See 8 USC §1227, et seq.

D. Who is an “Employee” for NLRA Purposes

In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the employer asked the INS to check the status of many of the union’s workers after the union prevailed in an NLRB election. Several workers were undocumented and subsequently departed the U.S. under the INS’s supervision. The NLRB ruled that the employer violated 29 USC §158(a)(1) and (3) by requesting the INS investigation. The U.S. Supreme Court agreed insofar as the judgment determined that the employer violated the Act by constructively discharging its undocumented alien employees. Moreover, the Court ruled that these alien employees were “employees” under the Act and, therefore, entitled to its protections. As the Court noted: “Counterintuitive though it may be, we do not find any conflict between application of the NLRA to undocumented aliens and the mandate of the Immigration and Nationality Act (INA)…” Id. at 892. In reaching this conclusion, the Court found persuasive the fact that Congress had not adopted provisions in the INA making it unlawful for an employer to hire an undocumented alien. Id.

Query whether the Court would reach this same conclusion given the subsequent passage of the Immigration Reform and Control Act of 1986 (IRCA). Under the IRCA, every employer in the U.S. is prohibited from knowingly hiring an alien not authorized to work. INA §274A, 8 USC §1324A.

E. Who is an “Employee” for FLSA Purposes

All aliens, including undocumented aliens, are considered “employees” under the Fair Labor Standards Act (which sets the minimum wage). Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988). Therefore, an alien paid less than minimum wage can collect back pay and liquidated damages from the employer who violates the statute by paying less than the minimum wage.

Based on several decisions, particularly by the federal courts, Georgia courts would be hard pressed to conclude that undocumented aliens are not “employees” for workers’ compensation purposes. As the case law indicates, to hold otherwise could lead to a virtual subclass of workers which is contrary to specific judicial pronouncements in favor of equal protection for alien workers. As the Court noted in Sure-Tan, Inc. v. NLRB: “If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining.” Sure-Tan v. NLRB, supra, at 892.

This same protective policy can be applied in the workers’ compensation context in Georgia. For example, if undocumented aliens are not afforded the protections of the Workers’ Compensation Act, employers could be given an incentive to violate its terms and create the very subclass of workers the U.S. Supreme Court held to be entitled to protection.

IV. Employer’s Good Faith Reliance on Documents Provided by an Illegal Alien in Hiring Decisions

Good faith compliance with the verification system is an affirmative defense (available to employers) to sanctions for unauthorized hiring. INA § 274A(a)(3), 8 C.F.R. § 274a.4. If documents are facially genuine or if there is a referral from a state agency whether the employer has retained the state referral notice and where the referral documents indicate state compliance, good faith may be properly asserted. 8 C.F.R. § 274a.6. See U.S. v. Tuttle’s Design Build, Inc., 2 OCA-HO 370 (8/30/91)(Good faith defense available if the employer shows that: (1) an examination of the employee’s documents was conducted in order to establish the employee’s identity and employment eligibility; and (2) the pertinent I-9 form concerning that individual has been properly completed.)

V. Does a Judge Have a Duty to Report Illegal Aliens?

Neither the immigration laws nor other judicial pronouncements create an affirmative duty for a judge (or an employer for that matter) to report an undocumented or illegal alien to the INS. In an interesting statement on the INS’s website, the INS states that while identifying and dealing with illegal immigration activities is an important element of the INS core mandate, safeguarding the civil rights of all Americans and aliens equally important. If such reports are made, the INS will investigate in accordance with its internal policies, priorities and procedures.

Nevertheless, if a judge were to report to the INS the presence of an undocumented alien, the judge would likely be protected from liability under the doctrine of judicial immunity. See Smith v. Shook, 237 F.3d 1322 (11th Cir. 2001)(applying the doctrine favorably to a state administrative law judge). The doctrine of judicial immunity is an absolute immunity which applies even where a judge acts maliciously. Harris v. Deveaux, 780 F.2d 911 (11th Cir 1986) citing Stump v. Sparkman, 435 U.S. 349 (1978).

For a judge to receive the benefits of judicial immunity, the court must determine (1) whether the judge dealt with the plaintiff in a judicial capacity and, if so, (2) whether the judge acted in the clear absence of all jurisdiction. Id.

Factors relevant in analyzing the first prong include whether:

1. The precise act complained of is a normal judicial function;
2. The events involved occurred in the judge’s chambers;
3. The controversy centered around a case then pending before the judge; and
4. The confrontation arose directly and immediately out of a visit to the judge in his or her official capacity.

In Harris, supra, a municipal court judge charged the defendant and then ordered him arrested and detained. The Eleventh Circuit ruled that even though such actions (i.e., the filing criminal charges in his own court and holding a preliminary hearing on whether the charges were supported by sufficient evidence to bind the defendant over for trial – over the objections of the prosecutor and investigating officer) were not necessarily a “normal judicial function,” the first prong was met given the substantial compliance with the other factors.

As for the second prong, the Eleventh Circuit considered whether the judge, by ordering the charges, became a prosecutor thereby lacking all jurisdiction since nothing in Georgia law gives a judge jurisdiction to initiate proceedings. The Court held that the second prong was satisfied because the judge had subject matter jurisdiction over the charges against the defendant.

It should be readily apparent from Harris that the courts will broadly construe the breadth of judicial immunity. As the court notes, doing so supports the policy goal of having a judge act freely without apprehension of personal consequences. Moreover, if no protection were afforded, judges would be more apt to engage in wasteful self-protection devices and be less inclined to administer justice. Id. at 915-16. That being said, if a judge initiates charges against a party as a result of events in the judge’s private, nonjudicial life, and the judge has a personal stake in the outcome of the proceedings, no immunity will be afforded. Id.

VI. Other Immigration Facts: The Nuts and Bolts of Lawful Status

To this point we have focused on specific circumstances involving undocumented aliens. As judges, you should also have an introduction to the nuts and bolts of legal immigration.

A. Nonimmigrant Visa Categories for Employment-Based Immigration

1. Temporary Visitor for Business (B-1)
2. Canadians and Mexicans: NAFTA (TN)
3. Visa Waivers (VWPP)
4. Intracompany Transferees (L-1A and L-1B)
– Managers and Executives vs. Specialized Knowledge
– What is a “qualifying organization”?
– One year continuous full time employment abroad
5. Treaty Trader (E-1) and Treaty Investor (E-2)
– Nationality of the enterprise and of the alien
– Performance of executive or supervisory duties or possess specific qualifications essential to the treaty employer’s U.S. operations
6. Specialty Occupations (H-1B)
– 195,000 cap per year
– Bachelor’s degree or the equivalent (3 years of experience = 1 year of college)
– Filing the Labor Condition Application
7. The Extraordinary Os, Performing Ps and Cultural Qs

B. Permanent Residency – Obtaining the “Green Card”

1. Employment-Based (EB-1, -2 and -3)
A. 120,000 cap per year
B. EB-1: Extraordinary workers, outstanding researchers and professors, multinational executives and managers
C. EB-2: Advanced degree professionals and National Interest Waivers
D. EB-3: Skilled workers
E. A word about labor certification vs. GAL 1-97 (Reduction in Recruitment)

2. Family Sponsored
A. Marriage fraud
B. Conditional permanent residency for 2 years

3. Abandoning permanent residency status
– Dos and don’ts: Keep your U.S. contacts (bank accounts, taxes, property, etc.)
– Obtaining a reentry permit to protect your status

C. American Competitiveness in the 21st Century Act of 2000

1. Effective October 17, 2000
2. Raises H-1B cap from 115,000 to 195,000 per year
3. Allows H-1Bs to remain in H-1B status beyond 6 year limit for certain adjustment of status applicants
4. Allows adjustment of status applicant to change his or her job
5. If H-1B applicant is changing to a new employer and has filed for another H-1B visa, he or she can begin working for the new employer prior to the approval of the new petition
6. LCA filing fees increase from $500 to $1000

Final Thoughts

1. INS rules are complicated and technical
2. Contreras v. Corinthian Vigor Ins. Brokerage Inc. (N.D. Cal., 10/05/00)

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