New Workers Comp Laws In California
Can An Injured Worker May be Eligible for a U-Visa?
Injured Worker Immigration U-Visa Injured Worker Immigration U-Visa Injured Worker Immigration U-Visa
Can An Injured Worker May be Eligible for a U-Visa? Injured Worker Immigration U-Visa
By Nikki Mehrpoo Jacobson
Certified Legal Specialist in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization Injured Worker Immigration U-Visa
(**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. Injured Worker Immigration U-Visa Injured Worker Immigration U-Visa
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. Injured Worker Immigration U-Visa
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:
- is a victim of one of the enumerated crimes or similar activity, includes attempt, conspiracy, or solicitation to commit any of the enumerated crimes.
- possesses information concerning the criminal activity.
- was, is, or is likely to be helpful in the investigation or prosecution of the crimes against her.
- has suffered substantial physical or mental abuse as a result of the crimes.
The enumerated crimes include the following:
- Abduction
- Abusive Sexual Contact
- Blackmail
- Domestic Violence
- Extortion
- False Imprisonment
- Female Genital Mutilation
- Felonious Assault
- Fraud in Foreign Labor Contractin
- Hostage
- Incest
- Involuntary Servitude
- Kidnapping
- Manslaughter
- Murder
- Obstruction of Justice
- Peonage
- Perjury
- Prostitution
- Rape
- Sexual Assault
- Sexual Exploitation
- Slave Trade
- Stalking
- Torture
- Trafficking
- Witness Tampering
- Unlawful Criminal Restraint
- Other Related Crimes*†
*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:
- File a DOR for a status conference
- Alert opposing counsel as to the reason for the conference
- Present a mini brief at the conference explaining to the WCJ why they have authority to sign off on this certification.
- Prepare the certification form for the WCJ to sign.
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:
- Injured worker filed a claim and/or testified about abuse or sexual assault in a court case, including WCAB and employment cases. Potential questions posed to the applicant: Did your employer post posters, drawings, pictures of a sexual nature? Did your employer make comments about clothing/appearance or make sexual jokes or comments? Look at you in a sexual manner? Did your employer ask for sexual favors, ask you to have sex with him/her, spread rumors? Did your employer touch you inappropriately? Force you to have unwanted sex?
- A housekeeper who has been physically or mentally abused by her employer and/or deprived of her liberty by having her ID or Passport confiscated.
- Did employer or coworker threaten violence? Did employer or coworker threaten to report applicant’s immigration status?
- Obstruction of Justice: Attempts to influence, obstruct, or impede ANY pending proceeding through use of threats or force; Destruction, alteration, or falsification of records, including wage/hour records, birth certificates.
- Witness Tampering: Did an employer ever intimidate or threaten applicant to delay or prevent testimony in any “official proceeding”; Alter, destroy, conceal records? Hinder, delay, or prevent communication to authorities; Threaten to damage property or cause bodily harm to delay or prevent witness participation?
LEGAL AUTHORITY & RESOURCES
- The application process and appropriate forms can be found USCIS website at www.uscis.gov.
- Judicial Council of California: Expert Guidance on Responding to U Visa and T Visa Certification Requests http://www.courts.ca.gov/documents/BTB24-PreCon1E-01.pdf
- New California Law on Certifications PC 679.10 U Visa Certifications – Effective January 1, 2016 https://www.ilrc.org/new-california-law-ensures-all-immigrant-crime-victims-california-can-access-u-visa
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
Nikki Jacobson, Attorney at Law
Certified Specialist, Workers’ Compensation Law
The State Bar of California Board of Legal Specialization
Los Angeles Workers’ Compensation Lawyer
Los Angeles Work Injury Lawyer
Workers Comp Consultation
Workers’ Compensation Expert
Los Angeles Attorney for Death Claims
Free Consultation
#AskNikkiNow
Injured Worker Immigration U-Visa
Nikki Jacobson, Attorney at Law
Certified Specialist, Workers’ Compensation Law
The State Bar of California Board of Legal Specialization
Los Angeles Workers’ Compensation Lawyer
Los Angeles Work Injury Lawyer
Workers Comp Consultation
Workers’ Compensation Expert
Los Angeles Attorney for Death Claims
Free Consultation
#AskNikkiNow
Injured Worker Immigration U-Visa
Injured Worker Immigration U-Visa
Injured Worker Immigration U-Visa
Work Injury Claim Was Denied
Free Workers’ Compensation Consultation
My Work Injury Claim Was Denied
My Work Injury Claim Was Denied. Now What? When a claim is denied, it means the claims administrator believes your injury is not covered by workers’ compensation. If the claims administrator sends you a letter denying your claim, you have a right to challenge the decision. Don’t delay, because there are deadlines for filing the necessary papers. If you need help with your workers’ compensation claim, you can contact the Information and Assistance Unit. You may represent yourself or hire an attorney. If you contest the denial of your claim, your case will be heard by a workers’ compensation administrative law judge (WCJ) at one of the division’s 23 local offices plus satellites.
What if I have a disagreement about my benefits?
At some point during your claim, you or the claims administrator might disagree with what your treating physician reports about your injury or treatment. When there is a disagreement about whether your claim is covered by workers’ compensation, you may be evaluated by a qualified medical evaluator (QME). To qualify as a QME, a physician must meet additional educational and licensing requirements. They must also pass a test and participate in ongoing education on the workers’ compensation evaluation process. If you have an attorney, your attorney and your claims administrator might agree on a doctor to resolve medical disputes. This doctor is called an agreed medical evaluator (AME).
For injuries on or after Jan. 1, 2013, and as of July 1, 2013 for all dates of injury, disagreements about a specific course of medical treatment recommended by the treating physician can only be resolved through a process called independent medical review (IMR).
My Work Injury Claim Was Denied – I want to object to the denial of my claim
If you want to object to the denial of your claim, you will need to file a case at one the division’s 24 offices located around the state. Each DWC office is a trial court where disputes that arise from workers’ compensation claims are decided by a judge without a jury.
How do I file a case?
In order to have your case heard by a judge, you must first file an Application for Adjudication of Claim. The application must be filed at the DWC office in the county where you live or in the county where you were injured. You must serve the application on all other parties, which is generally the claims administrator.
What happens next?
The DWC office where you filed the application will send you a notice confirming that it has been filed. The notice will include your assigned case number, which will begin with the letters “ADJ” followed by a sequence of numbers. Keep the notice and use the assigned case number on all documents and correspondence relating to your case.
How do I get a hearing before a judge?
You must file a Declaration of Readiness to Proceed to request a hearing. Your case will be scheduled for a hearing called a mandatory settlement conference (MSC).
What happens at the hearing?
You and your claims administrator or their attorney will appear before a judge. The judge will discuss the case with both of you and try to assist in reaching a settlement. If your case is not settled at the MSC, you will need to prepare documents that outline the dispute, identify the items each party will present at trial and the names of the witnesses that each party will ask to testify. The judge will then schedule a date for trial.
The trial will be held before another judge. You must attend the trial. The judge will issue a written decision after the trial and send it to you by mail, which usually occurs between 30 and 90 days after the trial. If either you or the claims adjustor disagrees with the judge’s decision, you can file a Petition for Reconsideration.
Want to learn more? Find it in the guidebook
- Chapter 2: Keep your claim on track
- Chapter 10: For more information and help
- Want a complete version of the injured worker guidebook?
My Work Injury Claim Was Denied: #AskNikkiNow
Los Angeles Workers’ Compensation Lawyers – Free Consultation – consultation@nikkijacobson.com
Nikki Mehrpoo Jacobson, Certified Specialists in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization
Professor of Law
Legal Analyst
Workers’ Compensation Claim Was Accepted
Free Workers’ Compensation Consultation
If my workers’ compensation claim was accepted
If my workers’ compensation claim was accepted … You should hear whether your claim is accepted or denied from your employer or its claims administrator within 90 days from the date the claim form is given to your employer. If you do not, your injury will be presumed to be covered.
What benefits am I entitled to?
Workers’ compensation insurance provides five basic benefits:
- Medical care: Paid for by your employer to help you recover from an injury or illness caused by work
- Temporary disability (TD) benefits: Payments if you lose wages because your injury prevents you from doing your usual job while recovering
- Permanent disability (PD) benefits: Payments if you don’t recover completely
- Supplemental job displacement (SJDB) benefits: (if your date of injury is in 2004 or later): Vouchers to help pay for retraining or skill enhancement if you don’t recover completely and don’t return to work for your employer
- Death benefits: Payments to the spouse, children or other dependents if a worker dies from a job injury or illness.
What if I have a disagreement about my benefits?
At some point during your claim, you or the claims administrator might disagree with what your treating physician reports about your injury. When there is a disagreement, you may be evaluated by a qualified medical evaluator (QME). To qualify as a QME, a physician must meet additional educational and licensing requirements. They must also pass a test and participate in ongoing education on the workers’ compensation evaluation process. If you have an attorney, your attorney and your claims administrator might agree on a doctor to resolve medical disputes. This doctor is called an agreed medical evaluator (AME).
Want to learn more? Find it in the guidebook
- Chapter 3: Medical Care
- Chapter 5: Temporary Disability Benefits
- Chapter 7: Permanent Disability Benefits
- Chapter 8: Supplemental Job Displacement Benefits
- Want a complete version of the injured worker guidebook?
Claim was accepted: #AskNikkiNow
Los Angeles Workers’ Compensation Lawyers – Free Consultation – consultation@nikkijacobson.com
Claim was accepted: #AskNikkiNow
Workers’ Compensation – Traveling Employees
2018 Temporary Total Disability (TTD) Rates
Los Angeles Workers’ Compensation Disability Benefits
2018 Temporary Total Disability (TTD) Rates
Division of Workers’ Compensation Announces 2018 Temporary Total Disability Rates
Los Angeles Workers’ Compensation Attorneys
2018 Temporary Total Disability (TTD) Rates
2018 Workers’ Compensation Disability Rates: The Division of Workers’ Compensation (DWC) announces that the 2018 minimum and maximum temporary total disability (TTD) rates will increase on January 1, 2018. The minimum TTD rate will increase from $175.88 to $182.29 and the maximum TTD rate will increase from $1,172.57 to $1215.27 per week.
Los Angeles Workers’ Compensation Attorneys
2018 Temporary Total Disability (TTD) Rates
Labor Code section 4453(a) (10) requires the rate for TTD be increased by an amount equal to percentage increase in the State Average Weekly Wage (SAWW) as compared to the prior year. The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2017, the SAWW increased from $1,164.51 to $1,206.92—an increase of 3.642 percent.
Los Angeles Workers’ Compensation Disability Benefits
2018 Temporary Total Disability (TTD) Rates
- The 2018 minimum and maximum temporary total disability (TTD) rates will increase on January 1, 2018.
- The minimum temporary total disability (TTD) rate will increase from $175.88 to $182.29.
- The maximum temporary total disability (TTD) rate will increase from $1,172.57 to $1215.27 per week.
Los Angeles Workers’ Compensation Disability Benefits
2018 Temporary Total Disability (TTD) Rates
Los Angeles Immigration Seminar 05-10-2017
Immigration U Visa: Victims of Violence/Crimes
May Be Eligible for Immigration Benefits
Speaker: Nikki Mehrpoo Jacobson
Experienced Los Angeles Immigration & Workers’ Compensation Attorney
Certified Specialist Workers’ Compensation Law
The State Bar of California Board of Legal Specialization
What About Injured Workers
Who Are Victims of Workplace Violence/Crimes???
CAAA LAVAAA (Los Angeles-Valley) Seminar:
Immigration for Injured Workers: Immigration U Visa
May 10, 2017
6:00 p.m.
Anejo Cantina & Grill
14755 Ventura Blvd, Sherman Oaks, CA
This program will cover various Immigration and Workers’ Compensation crossover issues, including:
- How will injured workers be affected by Trump’s New Executive Orders and Immigration Policies?
- What every injured worker should know?
- Injured workers’ immigration rights. What rights do our client have?
- What can all immigrants do if they are stopped, detained or deported?
- How to advise injured workers about their immigration rights?
- How to advise injured workers about encountering various law enforcement agencies?
- DHS, USCIS, CBP, ICE, Local Police, Immigration Raids, etc…
- Immigration consequences of convictions, arrests and criminal issues.
- Work Permits
- Humanitarian Relief
- U Visas: Crime Victims
- T Visas: Victims of Trafficking
- Labor Codes Applicable to Undocumented Immigrants
- Deposition Guidance
Experienced Los Angeles Immigration & Workers’ Compensation Attorney
PROGRAM MATERIALS: Immigration & WC Final
Contact Attorney Nikki Jacobson Now for A Consultation.
Victims of Violence/Crimes May Be Eligible for Immigration Benefits – Los Angeles Immigration Attorney
What About Injured Workers Who Are Victims of Workplace Violence/Crimes???
Experienced Los Angeles Immigration & Workers’ Compensation Attorney