The Longshore and Harbor Workers Compensation Act (“LHWCA”), as well as its extensions, the Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”), exclude non-resident alien siblings from the receipt of death benefits. Section 9 of the LHWCA specifically restricts non-resident alien beneficiaries to spouses, children, and dependent parents. See 33 U.S.C. § 909(g) (2011). The relevant language of this exclusion states:
“Compensation under this chapter to aliens…shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for that period of one year prior to the date of the injury…” Id. (emphasis added).
Additionally, the statutory provisions of the DBA mimic the LHWCA statutes. Section 2 of the DBA states:
“Compensation…for death under this Act to aliens and nonnationals of the United States not residents of the United States…shall be in the same amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year immediately prior to the date of the injury…” 42 U.S.C. § 1652(b) (2011) (emphasis added).
This language is repeated nearly verbatim in the WHCA. See 42 U.S.C. § 1701(c) (2011). Further, the Code of Federal Regulations states that when determining whether a beneficiary is entitled to coverage under the War Hazards Compensation Act, the claimant should meet the requirements set forth in sections 6, 8, 9, and 10 of the LHWCA. See 20 C.F.R. § 61.200(B) (2011).
There is a caveat, however. While non-resident alien siblings are excluded from beneficiary status, the same cannot be said about resident alien siblings. Compare 33 U.S.C. § 909(d) (2011) with 33 U.S.C. § 909(g) (2011).
Thus, the LHWCA, the DBA, and the WHCA all exclude non-resident alien siblings from coverage as death benefit beneficiaries, despite whether the decedent supported them at the time of injury and death. Although case law interpreting these statutes is sparse, Section 9 of the LHWCA is constitutional on the grounds that differing classes of aliens are treated differently by the United States Constitution, Congress, and the Supreme Court of the United States. Logara v. Jackson Engineering Co., 35 BRBS 83 (2001).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
