Immigration

Legal Rights of Undocumented Immigrants in the U.S.

Are undocumented immigrants treated the same under the law as others who live in the U.S.?
By Ilona Bray, J.D., University of Washington Law School
Updated: Mar 10th, 2021

Undocumented (sometimes called "illegal") immigrants living and perhaps working in the United States have some rights under the U.S. Constitution, despite their unlawful immigration status.

Aspects of the Constitution that address certain basic human rights apply to all people, even those who lack proper documentation. Examples of these rights include:

  • the right to due process (fair treatment according to established rules and principles) in legal proceedings
  • the right to have the laws protect you in the same way they do everyone else
  • the right to a jury trial and to defend yourself if arrested (including arrests by immigration authorities) or sued
  • the right to organize or be part of a labor union
  • the right to be protected against unlawful search and seizure
  • the right not to testify against yourself in court
  • the right to file a civil lawsuit if you've been harmed, and
  • the right not to be discriminated against.

Some states grant illegal immigrants various rights as well, such as to apply for a drivers' license.

If you are an undocumented immigrant in the U.S., keep reading to learn more about your rights.

Constitutional Rights That Apply to Undocumented Persons

Even if you are in the United States without permission or proper immigration documents, various sections of the U.S. Constitution apply to you.

There is a particularly important provision of the Fourteenth Amendment which states that, "No state shall...deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

An undocumented immigrant is definitely a "person." In brief, this means you are owed such procedural rights as a jury trial and the right to defend yourself against the criminal charges if arrested.

It also means that if someone sues you over a civil matter (for example, alleging that you owe money for having breached a contract or done damage to the other person's property), that you have the right to receive notice and to defend yourself in court. Also see "Defense Against Removal," below.

Various criminal charge-related amendments to the Constitution (including the First, Fourth, Fifth, Sixth and 14th) also apply to undocumented persons. These protect against things like unlawful search and seizure by law enforcement authorities (without probable cause and a warrant for such an action). They allow you to stay silent and avoid self-incrimination (testify against your own interests) when in court or custody.

Undocumented immigrants also have the right to file lawsuits, such as discrimination suits, in federal court. State laws vary, but some jurisdictions give an undocumented immigrant the right to sue others in state court, as well.

Undocumented Immigrants' Rights to Defense Against Removal

In most situations, you have the right to a hearing in immigration court and to defend yourself against deportation or removal from the United States.

There are exceptions, however. One known as "expedited removal" allows arriving aliens to be sent back without seeing an immigration judge, except in narrow circumstances such as if they assert a credible fear of return and wish to apply for asylum. The definition of "arriving aliens" was expanded under the Trump Administration, to include anyone not inspected by an immigration officer at the border who has been continuously present in the U.S. for less than two years.

Another exception is made if you have returned to the U.S. after a previous order of deportation. In this case, no further hearings are available to you, and the previous order can be immediately acted upon.

If you are scheduled for a hearing before an immigration judge (in the Executive Office for Immigration Review or EOIR) you can challenge the grounds on which you are being deported or assert various defenses. In presenting your case, you can testify, submit supporting documents, and call witnesses. You also have the right to representation in immigration court by an attorney, but the U.S. government doesn't have to pay for one on your behalf. You may be able to find low-cost legal help from a charitable organization serving immigrants.

Drivers' Licenses Are Available to Undocumented Immigrants in Some U.S. States

A handful of U.S. states, as well as the District of Columbia and the Commonwealth of Puerto Rico, offer drivers licenses to undocumented immigrants who live there. Note that this does not confer any form of legal status; it merely says you are allowed to drive a car in that state.

The states whose laws allowed this are, as of 2020, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Utah, Vermont and Washington.

See the National Immigration Law Center information on access to driver's licenses or cards for the latest.

No Right for Undocumented Immigrants to Work in the United States

It is against federal law for an employer to hire an undocumented immigrant, and they face financial and other penalties if they do so. If you accept a job in the U.S., then on your first day of work or soon after, the employer will (if obeying the law) check to make sure you have a green card, visa with work privileges, work permit (also called an employment authorization document or EAD), or naturalization document (meaning the person has become a U.S. citizen).

Employers are responsible for taking these and other measures to make sure they don't hire undocumented workers. However, they sometimes hire them unknowingly or without a careful check. And, they sometimes hire them knowingly, for a variety of reasons.

Use of fraudulent documents to obtain a job in the U.S. is a violation of immigration law, and can harm your future chances of obtaining lawful immigration status. Once you are hired, however, you do have certain rights with regard to your relationship to your employer and its treatment of you.

Employment-Related Rights If Undocumented Immigrant Is Working in the United States

Like any employee, you have the right to be paid for the work you do, at minimum wage, at least, plus overtime pay when legally required. Like other workers, you also have the right to healthy and safe conditions on the job, free from abuse, exploitation, or sexual harassment.

These rights are all too often violated, however, because employers know the workers don't want them to reveal their undocumented status.

If you are hurt on the job, you have the right to collect workers' compensation benefits in some states. You might even have the right to collect disability insurance if you paid into it from your paychecks. You also have the right to organize or join a union to force better working conditions.

Undocumented immigrants are blocked from collecting unemployment insurance in most states, however, because a condition of unemployment insurance is usually that the employee must be willing and able to work. Undocumented workers are not technically able to work, so they do not qualify.

Protections Against Discrimination for Undocumented Immigrants

Undocumented immigrants are legally protected against discrimination on the basis of race or nationality, by employers or anyone else. Employers must ask you for your legal authorization to be in the United States before they can hire you, but they can't single you out and ask only you, or only individuals of your nationality to show their papers. In order for the employer's actions to be legal, its asking for documentation must be company policy, covering all workers.

Possibilities for Undocumented Immigrants to Gain Legal Status in the U.S.

U.S. law creates many barriers to undocumented people who want to gain legal status in the United States. Not only could they be arrested at any time, but their unlawful status could be used against them in future efforts to obtain a U.S. visa or permanent residence.

For starters, staying in the U.S. beyond 180 days is a ground of "inadmissibility" under U.S. immigration law. That means if the person tried to apply for a U.S. green card, he or she would likely be barred for the following three years. The number jumps to ten years if the unlawful stay was for 365 days or more.

What's more, unlawful entry is, for most categories of green card applicants, a bar to using the application procedure known as "adjustment of status." That means the green card applicant would have to leave the U.S. for an interview at a consulate in their home country, which is where that three- or ten-year bar would be ordered.

Nevertheless, the situation is not hopeless for an immigrant seeking to become legal in the United States. Marriage or family relationships can form the basis of a green card application, combined with a waiver request (on Form I-601A) to overcome the unlawful presence.

Or, for immigrants who have lived in the United States for at least ten years and can show good moral character (including no aggravated felonies on record) and close family connections with U.S. citizens or lawful permanent residents who would suffer exceptional and extremely unusual hardship if the person was removed, something called "cancellation of removal" is a possibility. It is unfortunately available only after a person has been arrested and placed in deportation proceedings. If successful, however, this remedy leads to a U.S. green card.

An Immigration Lawyer Can Help Analyze Your Legal Rights and Possibilities

The law surrounding the legal rights of undocumented immigrants is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic.

For more detailed, specific information, your best bet is to contact an immigration lawyer or an organization serving immigrants, such as the American Civil Liberties Union (ACLU). Or, if you are low income and cannot afford an attorney, check into the list of low-cost or pro bono (free) agencies that is kept by the immigration court system.

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