Workers' Comp for Undocumented Construction Workers in New York

Yes. Workers comp for undocumented construction workers in New York is available regardless of immigration status. New York Workers' Compensation Law § 2 defines "employee" without any citizenship requirement. Section 17 guarantees noncitizens the same compensation as residents. No Social Security number is required. And the Workers' Compensation Board does not report your immigration status to federal authorities in the normal course of a claim.

Were you hurt on a job site and worried that filing a claim could put your immigration status at risk? That fear makes sense. But the law in New York is on your side. Many employers count on injured workers not knowing their rights. This guide lays out what those rights are: the statutes that protect you, the benefits you can collect, the state program that shields claimants from deportation during a claim, how to file step by step, and what to do if a claim is denied or an employer retaliates.

The Orlow Firm has represented injured construction workers, including undocumented workers, throughout Queens and New York City for more than 40 years. We serve Spanish-speaking clients. Se Habla Español.

Why New York Law Protects Undocumented Workers

This is not a gray area. New York's workers' compensation statute and its highest court have both made one thing clear. Immigration status does not strip an injured worker of the right to compensation.

Start with who counts as an employee. New York Workers' Compensation Law § 2 defines "employee" broadly, and that definition has no citizenship or documentation requirement. (NY WCL § 2) If you were doing work for an employer who must carry coverage, you fit within the law.

The statute also addresses noncitizens directly. New York Workers' Compensation Law § 17 says noncitizens receive the same compensation as residents of the state. (NY WCL § 17) The only narrowing in that section involves dependent benefits for certain family members living outside the country. It does not touch the injured worker's own right to benefits.

New York's highest court backed up these protections in Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (2006). The Court of Appeals held that federal immigration law does not block a lost-wage claim brought by an undocumented worker injured on the job under New York's Labor Law. The specific federal law at issue was the Immigration Reform and Control Act. One nuance applies. This protection extends to workers who did not use fraudulent documentation to get the job. Every situation is different, so this is one point a lawyer should review with you directly.

Construction workers get another layer of protection that applies to everyone on a site, documented or not. Labor Law § 240, often called the Scaffold Law, and Labor Law § 241(6) hold property owners and general contractors strictly liable for gravity-related hazards. That covers falls from scaffolds, ladders, and roofs, plus injuries from falling objects. (NY Labor Law § 240) These laws can support a claim against the owner or contractor on top of a workers' compensation claim.

What Benefits Are Available

Workers' compensation in New York provides several distinct categories of benefits. Knowing what each one covers helps you know what you can recover.

Medical benefits. Workers' comp pays the full cost of authorized medical treatment related to your injury. That means doctor visits, specialists, surgery, physical therapy, and prescription medications. You should not be paying out of pocket for treatment of a work-related injury.

Wage replacement. Cash benefits generally replace two-thirds of your average weekly wage, up to a maximum set by the state. For accidents on or after July 1, 2025, the maximum benefit is $1,222.42 per week and the minimum is $325 per week. That minimum is a meaningful increase from the prior $275 minimum (which applied to 2024 injuries), and a significant jump from the $150 minimum that was in effect from 2013 through 2023. The rate is based on the date of your injury, not the date you file.

Permanent disability benefits. If your injury leaves you with a permanent partial or permanent total disability, ongoing benefits may continue. The amount depends on the nature and extent of the impairment.

Death benefits. If a construction worker dies from a work-related injury, surviving family members may receive death benefits under § 17. Those benefits can reach family members in another country, including a spouse, children, or parents who were supported by the worker for at least one year before the accident. (NY WCL § 17)

One important limit: workers' compensation does not include money for pain and suffering. That is one reason the third-party and Labor Law claims below matter so much for construction workers. Those separate cases can cover damages that workers' comp does not.

The WCB-DHS Partnership: Protection From Deportation

This is the part most undocumented workers have never heard about. It speaks directly to the biggest fear: that filing a workers comp claim as an undocumented construction worker will lead to deportation.

The New York State Workers' Compensation Board has a formal partnership with the U.S. Department of Homeland Security. When an undocumented worker is part of a Board claim or a labor investigation, the Board can submit letters to DHS asking for prosecutorial discretion to protect the worker during the proceeding. That can include deferred action, parole, and work authorization. (NYS WCB — Protecting Undocumented Workers During Labor Investigations)

As WCB Chair Clarissa Rodriguez put it, "we must guard against the use of immigration status as a tool for retaliation against workers asserting their legal rights."

The workers' compensation process does not require you to disclose your immigration status. Under current policy, the Board does not share a claimant's immigration status with federal authorities in the ordinary course of handling a claim. Federal enforcement priorities are set outside of state government, so no one can offer an absolute guarantee about every federal action. But New York's system is built to protect workers who come forward, not expose them.

Anti-Retaliation Protections

New York law flatly prohibits an employer from retaliating against any employee, documented or not, for filing or trying to file a workers' compensation claim.

Retaliation can take many forms. It includes firing, demotion, cutting hours, threats, or threatening to report a worker's immigration status to authorities. Using immigration status as a threat to discourage a claim is itself an illegal act. The New York State Attorney General enforces immigrant workers' rights and treats deportation threats made to deter a claim as unlawful retaliation. (NYS Attorney General — Immigrant Workers' Rights; NYC Mayor's Office of Immigrant Affairs)

A worker who faces retaliation has the right to pursue additional legal action against the employer.

Steps to File a Workers Comp Claim as an Undocumented Worker

The process is the same for undocumented workers as for anyone else. Taking these steps in order protects both your health and your claim.

1. Get medical attention right away. Tell the provider the injury happened at work, so it is documented as work-related from the start.
2. Report the injury to your employer within 30 days. Put it in writing if you can. A text message or a short note works. Keep a copy. New York Workers' Compensation Law § 18 sets this notice requirement. (NY WCL § 18)
3. Let your employer file Form C-2F. The employer must report the injury within 10 days of learning of it under § 110. (NY WCL § 110) If they fail to do so, you still have options.
4. File Form C-3 (Employee Claim) with the Workers' Compensation Board. The form is available at wcb.ny.gov. No Social Security number is required — providing one is voluntary and non-provision will not result in denial of your claim. You can use an ITIN if you have one, or file without one. You generally have two years from the date of the accident to file under § 28. (Form C-3; NY WCL § 28)
5. Document everything. Save photos of the accident site, medical records, pay stubs or records of cash payments, witness names and numbers, and any messages with your employer.
6. Consult an attorney. This matters most if the employer denies the injury happened, disputes that you worked for them, or threatens retaliation. A workers' comp attorney can guide you through the Board's hearing process.

What to Do If Your Claim Is Denied

A denial is not the end of the road. Read the denial letter carefully. The most common reasons are a disputed employment relationship, often when a worker was paid in cash, a dispute over whether the injury was work-related, or a missed deadline.

Proving you were employed when there are no formal payroll records takes some legwork, but it is doable. Useful evidence includes statements from coworkers, photos of you at the worksite, cell phone location data, records of cash payments, and text messages with the employer or foreman.

You have the right to appeal by requesting a hearing before the New York State Workers' Compensation Board. Appeal deadlines apply, so act promptly. Having an attorney greatly improves outcomes at these hearings. That is especially true for undocumented workers whose employers try to dispute the employment relationship.

Common Myths, Debunked

Workers' Comp vs. Third-Party Claims: Know the Difference

This is where injured construction workers often leave significant money on the table. It is also unique to the construction setting.

Workers' compensation is a no-fault system. You collect no matter who caused the accident, but in exchange you generally cannot sue your direct employer. That trade-off is the whole foundation of the comp system.

A third-party claim is different. Say the construction site is owned or managed by someone other than your direct employer, such as the building owner or the general contractor. If your injury involved a fall from a height or a falling object, New York Labor Law § 240 (the Scaffold Law) can create strict liability against those parties. (NY Labor Law § 240) Strict liability means they can be held responsible even without proving negligence in the traditional sense.

Third-party claims can recover damages that workers' comp does not. That includes pain and suffering, full lost wages rather than just two-thirds, and future losses. And as Balbuena confirmed, undocumented workers can pursue these claims and workers' compensation at the same time.

These two paths are exactly why our firm has recovered substantial sums for undocumented construction workers. In one matter, we recovered $2,474,000 for an undocumented worker who was electrocuted on a scaffold and fell, requiring back and knee surgeries. In another, we recovered $2,100,000 for an undocumented worker who fell off a scaffold and needed elbow and shoulder surgery. Even smaller injuries can yield meaningful recoveries. We obtained $400,000 for an undocumented laborer who fell six feet from a collapsed scaffold and required ankle surgery. Prior results do not guarantee a similar outcome.

Frequently Asked Questions

Will filing a workers' comp claim lead to deportation?

The Workers' Compensation Board does not require you to disclose your immigration status. Under current policy, it does not report claimants' status to federal authorities in the normal course of a workers comp claim. The Board's DHS partnership can also request protections such as deferred action for workers in proceedings. No one can guarantee every federal action, but New York's system is designed to protect workers who come forward, not expose them.

Do I need a Social Security number to file a workers' comp claim in NY?

No. You do not need a Social Security number to file a workers' comp claim as an undocumented construction worker in New York. Providing your SSN on Form C-3 is voluntary and non-provision will not result in denial. You can use an Individual Taxpayer Identification Number (ITIN) if you have one, or you can file without any identification number at all.

What happens if my employer doesn't have workers' comp insurance?

Carrying coverage is mandatory for employers in New York. If your employer is uninsured, you may still pursue benefits through the state's Uninsured Employers Fund, and the employer can face penalties. An attorney can help you bring a claim against an uninsured employer.

Can I get workers' comp if I was paid in cash?

Yes. Being paid in cash does not disqualify you from workers compensation in New York. It can make proving the employment relationship harder, so gather evidence. Witness statements, photos at the site, text messages, and any records of payment all help establish that you worked for the employer.

What should I do if my employer threatens to report me to immigration for filing a claim?

That threat is itself illegal retaliation under New York law. Document the threat in writing, including the date and any messages, and contact an attorney right away. The New York State Attorney General enforces protections against exactly this conduct, and you may have additional legal claims beyond the workers comp case.

How long do I have to file a workers' comp claim in New York?

You generally have two years from the date of the accident to file your workers comp claim under Workers' Compensation Law § 28. You must also notify your employer of the injury within 30 days under § 18. Acting sooner is always better — evidence and witness memory fade quickly.

Sources & Official Resources

New York Workers' Compensation Laws Cited

1. NY Workers' Compensation Law § 2 — Definition of Employee
2. NY Workers' Compensation Law § 17 — Compensation for Noncitizens
3. NY Workers' Compensation Law § 18 — Notice of Injury (30-Day Requirement)
4. NY Workers' Compensation Law § 28 — Statute of Limitations (2 Years)
5. NY Workers' Compensation Law § 110 — Employer Reporting Requirement (10 Days)

New York Labor Laws Cited 6. NY Labor Law § 240 — Scaffold Law (Strict Liability for Gravity Hazards)

WCB Official Resources 7. NYS Workers' Compensation Board — Protecting Undocumented Workers During Labor Investigations 8. NYS WCB — Schedule of Maximum Weekly Benefits 9. NYS WCB — Employee Claim Form C-3

Government Agency Resources 10. NYS Attorney General — Immigrant Workers' Rights 11. NYC Mayor's Office of Immigrant Affairs — Immigrant Workers' Rights

Contact The Orlow Firm

If you are an undocumented construction worker who was injured on a job site in New York City, you have more rights than most employers will tell you. You may also be entitled to more than just workers' compensation. The Orlow Firm has represented injured construction workers, including undocumented workers, throughout Queens and New York City for over 40 years, recovering millions in the process.

Call (646) 647-3398 for a free, confidential consultation. We work on contingency. You pay nothing unless we win.

Se Habla Español.

This article provides general information and is not legal advice. Every case is different. Contact an attorney to discuss your specific situation.