Authorization to Work in the U.S. No Longer an Eligibility Requirement for Vocational Assistance

By: Lorrie H. Spencer, Attorney at Law

Effective July 1, 2024, workers who are unauthorized to work in the United States are no longer automatically ineligible for vocational training assistance.  Click here for the Industry Notice from the Workers’ Compensation Division (WCD).  A list of the changes and the revised Division 120 Rules are available on the WCD website here.  The revised Rules apply to vocational assistance eligibility evaluations completed on or after July 1, 2024.  Plus, in some circumstances, insurers must redetermine eligibility for workers previously found ineligible due to their authorization status.

Workers must still meet all of the other requirements listed under Oregon Administrative Rule (OAR) 436-120-0145(2) to be eligible for vocational training assistance under OAR 436-120-0511.  It is important to note that workers who are not authorized to work in the U.S. are only eligible for limited training plans.  Limited training plans do not include on-the-job training, direct employment services, job placement services, or return-to-work monitoring or services under OAR 436-120-0443(17) and OAR 436-120-0500(6). 

If a worker was previously found ineligible for vocational assistance before July 1, 2024, solely on the basis that the worker was not authorized to work in the U.S., the insurer must redetermine eligibility under certain circumstances:

1. If the worker received the insurer’s notice of ineligibility or end of eligibility on or after December 30, 2023, the insurer must redetermine eligibility no later than July 31, 2024 (OAR 436-120-0175(2)(a)).  Note:   This Rule change effectively requires insurers to proactively identify which workers were ineligible for retraining on or after this date and then reassess eligibility, without requiring the worker first request redetermination.  It is unclear what the consequences, if any, of an insurer failing to do so will be.
2. If the worker received the insurer’s notice of ineligibility or end of eligibility before December 30, 2023, the insurer must redetermine eligibility within 30 days of the worker’s second request for redetermination if all of the following conditions are met per OAR 436-120-0175(2)(b):

• 1. The worker requested redetermination within six months of the date they received the insurer’s notice of ineligibility or end of eligibility;
  2. The worker submitted evidence to the insurer within six months of the date they received the insurer’s notice of ineligibility or end of eligibility that the worker had applied for authorization to work in the U.S. and was awaiting a decision by the U.S. Citizenship and Immigration Services (USCIS); and,
  3. The worker submitted the second request for redetermination on or after July 1, 2024.

• Note: While workers who request redetermination under OAR 436-120-0175(2)(b) are not required to be authorized to work in the U.S., the worker may not request redetermination after 30 days from receiving a decision from USCIS.

• Also note that, if a worker becomes authorized to work in the U.S. before or during a limited training plan, the insurer must reconsider the category of vocational assistance.

These Rule changes apply to only a small portion of workers; but, if they do apply, determining the scope and extent of entitlement to vocational assistance is complicated.  I’m happy to chat about any questions that may arise via e-mail [email protected], or phone (503) 802-5206.