Can an Immigrant File a Lawsuit?

Yes, and here’s what you need to know about the process and your rights

Immigrants are getting a lot of headlines these days, and there’s a lot of confusion about who’s an immigrant and how they live in the United States.

There are different categories of immigrants, and sometimes their status affects things like the ability to file a personal injury lawsuit, claim workers’ compensation benefits, and other issues.

How the law defines “immigrant” in the U.S.

Here are some ways the U.S. defines “immigrant.” An immigrant is a person who is legally in the U.S. but is not a U.S. citizen or national. Before getting into the rights and privileges of immigrants, an individual should understand their legal status and how that affects their ability to file a lawsuit and other legal matters. 

A citizen was either born in the U.S. or meets certain criteria to be naturalized. These include:

• A person born outside the U.S. who has one parent who’s a U.S. citizen and meets certain residency requirements; or
• A person who is naturalized:
  • is at least 18 years old,
  • has lived in the state where they plan to apply for citizenship for at least three months,
  • demonstrates an understanding of the English language and U.S. history and government,
  • has not left the U.S. for more than six months at a time during the waiting period, and 
  • has not deserted from the U.S. military.

Naturalization can take up to eight months.

If you were not born in the U.S., you fall into one of these categories:

Categories of immigrants
Legal immigrant	Foreign-born person who is legally admitted into the U.S.
Undocumented immigrant	Foreign-born person who does not have a valid visa or other immigration documents
Permanent resident (also considered an immigrant)	A person who has been granted authorization to live and work in the U.S. permanently
Refugee	A person who is outside their home country and is unable or unwilling to return because of persecution or reasonable fear of persecution

There are permanent visas for immigrants to the U.S. and temporary visas for people who do not intend to live here permanently (non-immigrants).

Difference between “refugee” and “undocumented immigrant”
Refugee	Undocumented immigrant
Fled home country because of persecution or well-founded fear or persecution if they were to return. They need international protection because they cannot return home safely.	Person who does not have valid U.S. immigration documents and might have entered the country illegally or overstayed their visa.
Refugees are granted protection in the U.S.	An undocumented immigrant is not granted protection in the U.S.

Refugees and documented immigrants have many of the same legal rights and protections.

Asylum seekers have applied for protection in a new country but their claims have not yet been determined. Migrants move from place to place, following seasonal work. Immigrants choose to move to a new country for a variety of reasons that include family, education, or the perception of economic opportunity.

Can an immigrant file a lawsuit for a personal injury?

Yes, a legal immigrant in the United States generally has the same rights as a U.S. citizen regarding personal injury law. An immigrant, permanent resident, or tourist (visitor) may file a personal injury lawsuit in the United States.

Immigrant’s right to sue for personal injury

This includes the right to pursue compensation for injuries resulting from another party’s negligence. The law does not discriminate based on immigration status for pursuing compensation for injuries caused by another party’s negligence.

In other words, an undocumented immigrant has the same legal rights as a U.S. citizen when filing a lawsuit for personal injuries. They may recover damages regardless of legal status.

Filing a personal injury lawsuit should not alert the U.S. Immigration and Customs Enforcement (ICE) to a person’s immigration status or location unless they have committed a crime.

8 USC § 1227 (U.S. Code, Deportable aliens) indicates that filing a personal injury claim is not a deportable offense. This is important because the law lists conditions under which a person could be deported, including (but not limited to) an alien who knowingly assisted another alien to enter the U.S., participates in marriage fraud or makes other misrepresentations, or has committed general crimes like felonies (i.e. controlled substances crimes, firearms offenses, domestic violence, and others).

Immigrant status and workers’ compensation claims

In most states, an undocumented immigrant may receive workers’ compensation benefits. There are a few states that do not permit this.

The federal government permits each state to create its own workers’ compensation laws. Roughly a dozen states are undecided on the issue of workers’ compensation benefits for undocumented workers.

Some employers will refer to the Immigration Reform and Control Act (IRCA), signed into law in 1986 by President Ronald Reagan, to deny workers’ compensation benefits on the basis of documentation. The IRCA made it illegal for an employer to hire an unauthorized worker. However, most states do allow workers’ compensation to undocumented workers.

Presently, Wyoming is the only state that specifically excludes undocumented workers from receiving workers’ compensation benefits. However, other states permit benefits with some limitations. For example, an injured worker might be able to receive medical benefits but not wage replacement, or they might be able to receive medical treatment but not long-term disability benefits. If this affects you, it’s crucial to check the law in the state where you’re employed.

Workers’ compensation and legal immigrants, permanent residents

A legal immigrant or permanent resident (green card holder) may receive workers’ compensation benefits in the U.S., regardless of immigrant status. Their citizenship status does not affect their ability to file a claim or receive benefits.

Workers’ compensation benefits available to immigrant workers

A legal immigrant, refugee, or permanent resident is entitled to the same benefits as any other citizen under workers’ compensation law. Specific amounts vary by state, but benefits include:

• Medical treatment 
• Lost wages, including future lost earning capacity 
• Transportation to medical appointments
• Job retraining and placement services
• Long- or short-term disability
• Death benefits for surviving dependents

In a state that permits undocumented workers to receive benefits, they can receive either all or some of these benefits. In some states, they might receive only medical treatment costs but not the other types of benefits. This varies by state.

Legal representation for immigrants in workers’ compensation or personal injury claims

Both legal and undocumented immigrants have a right to legal representation for a personal injury lawsuit or workers’ compensation claim. 

There are several reasons why an immigrant should hire a lawyer to represent them.

1. The claimant’s immigration status should not be allowed in court as evidence or for the purpose of intimidation. A lawyer can help protect the immigrant from potential prejudice and ensure fair treatment in court. A lawyer is bound by attorney-client privilege and cannot disclose immigration status unless required by law.
2. A defendant or insurance company is not allowed to intimidate or threaten an undocumented claimant based on immigration status. A lawyer will intervene and take legal steps to protect the immigrant if there are threats or attempts at coercion.
3. Many immigrants are concerned about retaliation or job loss if they file a workers’ compensation claim. Retaliation is against the law, regardless of immigration status.
4. As in any legal case, a lawyer will guide their client on how to maximize compensation and provide a strong case strategy. This can be particularly important if the immigrant is not a fluent English speaker or if they’re unfamiliar with the laws relevant to their claim.
5. Although residency status is not relevant to a personal injury or workers’ compensation claim, there could be some complex questions if the claimant requests benefits or damages for lost wages or future earning capacity. To claim lost wages, the claimant must provide proof of past earnings. If they’re claiming a loss of future earning capacity, the law requires reasonable evidence of what that capacity would be. This cannot be speculative; it must be proven and affirmed. A personal injury or workers’ compensation lawyer would be able to analyze and determine wage claims so the case is judged on the correct facts.

Can a U.S. citizen file a personal injury lawsuit against a non-citizen?

Yes, a U.S. citizen may file a personal injury lawsuit against a non-citizen. Citizenship and immigration status are not reasons to deny a claim. If the non-citizen was negligent and caused harm to a citizen, they would be responsible for damages like any other negligent defendant. 

However, in any personal injury lawsuit (citizenship status notwithstanding), getting a judgment against a negligent party is only the beginning of the solution. Actually recovering compensation from that person could be complicated. 

The plaintiff may pursue compensation in a number of ways, IF the immigrant has assets:

1. Contact the immigrant’s attorney (if they have one) or the person directly and request that the judgment be paid. 
2. File a transcript of judgment in the county where the debtor owns property, IF they do. 
3. A lien may be filed against their real property (if it exists) for 10 years. 
4. Garnish wages to obtain a percentage of their earnings to pay the judgment. 
5. Seize and sell the debtor’s real or personal property (including vehicles).

However, this is all conditional on the premise that the individual owns these assets and has a job. An undocumented immigrant may have a bank account, even if they don’t have a Social Security number. They would need to use other forms of identification like a passport, driver’s license, consular ID or birth certificate.

Immigrants’ basic civil rights and responsibilities regarding deportation

An immigrant has several rights against deportation. This is true whether they are a legal immigrant or an undocumented immigrant. 

An immigrant—legal or undocumented—has the following rights:

• Right to due process of law. An immigrant is guaranteed fair legal proceedings and is protected against arbitrary denial of life, liberty or property. This includes being informed of the charges against them and presenting evidence in their own defense.
• Right to representation. An immigrant may request a government-provided attorney if they cannot afford one.
• Asylum. An undocumented immigrant who fears persecution in their home country may qualify for asylum in the U.S.
• Cancellation of removal. An undocumented immigrant who has been living in the U.S. for a long time might be eligible to have their removal cancelled.
• Adjustment of status. An undocumented immigrant might be able to become a lawful permanent resident by being sponsored by a family member who is a U.S. citizen or lawful permanent resident.
• Temporary protected status (TPS) or Deferred Action for Childhood Arrivals (DACA). This might be an option for some immigrants.

However, the U.S. may detain or deport a non-citizen who participated in criminal acts, is a threat to public safety, or has violated their visa. A foreign national could be held in a U.S. detention center pending trial or deportation. If they are detained, they may appear before a judge in immigration court, or they might be subject to expedited removal without a hearing. 

A non-citizen who could be subject to expedited removal without a hearing would be a person who comes to the U.S. without proper travel documents or uses forged travel documents, or who does not comply with their visa or other requirements.