Legal Rights of Undocumented Immigrants in the U.S.

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 (discussed below). California is among those states, and also offers Medi-Cal (a state run health-insurance program for extremely low-income people) to undocumented persons.

If you are an undocumented immigrant in the United States, 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 (though you might have to assert them in the face of others trying to ignore or take those rights away).

Due Process Rights

There is a particularly important provision of the Fourteenth Amendment stating 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.

Immigrants' due process rights have been eroded under the Trump Administration, however. Most notably, in June 2025, the Supreme Court overruled a District Court Judge's holding that the administration must give foreign nationals who are being deported to a third country (not their own) adequate time to raise claims that they might be tortured there. Trump has also said in interviews, "If people come into our country illegally, there's a different standard." Although legal experts disagree with this, actions by Immigration and Customs Enforcement (ICE) suggest that they are following Trump's theory.

Constitutional Rights in Criminal Proceedings

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" is broader than one might think. Under the second Trump administration, it is said to include anyone not inspected by an immigration officer at the border who has been caught anywhere within 100 miles within two years of entry.

Another exception is made if you have returned to the United States 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 or territories whose laws allowed this are, as of early 2026:

1. California
2. Colorado
3. Connecticut
4. Delaware
5. District of Columbia
6. Hawaii
7. Illinois
8. Maryland
9. Massachusetts
10. Minnesota
11. Nevada
12. New Jersey
13. New Mexico
14. New York
15. Oregon
16. Puerto Rico
17. Rhode Island
18. Utah (though a movement is underway in the state legislature to repeal that)
19. Vermont
20. Virginia, and
21. Washington.

See the National Immigration Law Center information on access to driver's licenses or cards for the latest, and for eligibility details. Applicants must typically prove their identity and nationality, prove state residency, show evidence of having filed state income tax returns or having an Individual Taxpayer Identification Number (ITIN), and pass the same written, vision, and road tests that other first‑time licensees must.​

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. 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 in the United States 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 United States 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 Obtain 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 lawful permanent residence.

For starters, staying unlawfully in the United States beyond 180 days (but less than 1 year) is a ground of "inadmissibility" under U.S. immigration law. Its result would be that a person who then tries to apply for a U.S. green card will likely be barred for the following three years. The number jumps to 10 years if the unlawful stay was for 365 days or more.

What's more, unlawful U.S. 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 3- or 10-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 USCIS Form I-601A) to overcome the unlawful presence.

Or, for immigrants who have lived in the United States for at least 10 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 or advising 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.