Under current Virginia laws, undocumented immigrants have a legal right to file personal injury lawsuits.
When it comes to auto accidents, slip and fall injuries, and other common injuries, your immigration status should not be an issue in your personal injury case.
However, personal injury cases related to employment (i.e. workers’ compensation) can be a bit more complicated.
In this article, we’ll go over your legal right to file personal injury lawsuits regardless of your immigration status.
Does My Immigration Status Matter in a Virginia Personal Injury Lawsuit?
In general, no. Under Virginia law, everyone in Virginia has the same right to file a personal injury lawsuit, regardless of their immigration status.
However, your immigration status may still play an important part in your personal injury case.
Cases in which the plaintiff is an undocumented immigrant frequently require special consideration and expert knowledge that not all personal injury lawyers have.
For this reason, it’s important that you consider hiring a personal injury lawyer who also has a strong background in immigration law.
By choosing an attorney who understands the special challenges and risks undocumented immigrants face in the legal system, you can increase your chances of receiving a fair settlement.
Workers’ Compensation for Undocumented Immigrants
Normally, individuals who are injured on the job can file workers’ compensation claims against their employers to recover lost wages and other damages.
However, under current Virginia employment law, undocumented immigrants are not eligible for the exact same forms of workers’ compensation as those who can work legally.
To summarize how workers’ compensation currently works for unlawful workers in Virginia:
- If you have a permanent, full disability due to a workplace accident, you can receive compensation. (Example: you are paralyzed from the waist down.)
- If you have had a temporary, full disability due to a workplace accident, you can receive compensation. (Example: you break both your legs and are rendered immobile for a few months.)
- If you have a permanent, partial disability due to a workplace accident, you can receive compensation. (Example: you lose several fingers.)
- However, if you are an unlawful worker and you receive a temporary, partial disability due to a workplace accident, you are not entitled to workers’ compensation. (Example: you break your arm.)
Basically, Virginia law wants people with temporary, partial disabilities to work through their disabilities.
For example, if you break a finger at your workplace, you are expected to go back to work within a few days of receiving medical attention.
Since undocumented immigrants can’t legally work, they are ineligible for workers’ compensation benefits.
For more information, see:
- Virginia Code § 65.2-101 – This law notes that the definition of “employee” includes “all aliens…whether lawfully or unlawfully employed.”
- Virginia Code § 65.2-502 – This law states that the employer doesn’t have to pay wages to an injured unlawful employee, “nor shall any such injured employee not eligible for lawful employment who is partially incapacitated be entitled during partial incapacity to receive temporary total benefits under § 65.2-500.”
- The Bill that Made these Changes
A Quick FAQ for Undocumented Immigrant Personal Injury Claims
Can I be deported for filing a personal injury lawsuit?
In general, no. You cannot face deportation because you filed a lawsuit, reported an accident, or sought treatment for injuries.
As such, it is in your best interests to seek medical attention and ask for copies of your medical records as soon as possible following an injury.
Even if you feel like you don’t need to go to the doctor, medical records are important evidence in many personal injury cases.
It is important to use your real name and personal information when filing a lawsuit or insurance claim.
Failing to do so could prevent you from receiving the compensation you are owed.
Will anyone ask about my immigration status?
In general, no. For most personal injury cases, your immigration status should not affect your claim in any significant way.
In fact, in 1981 the Virginia Supreme Court ruled that a plaintiff’s immigration status is not relevant to their ability to file personal injury claims.
This is important, because it is always possible that a jury knowing about your immigration status could cause them to be prejudiced against you.
Nevertheless, you should still talk to your lawyer about how to deal with any questions about your legal status that may come up.
This is another place where hiring a personal injury lawyer with a good understanding of immigration law can be valuable.
Do I need to speak English to file a personal injury lawsuit?
No. You don’t have to read or speak English to file any kind of lawsuit in Virginia.
However, all forms filed with a Virginia court must be completed in English.
In most cases this should not pose a problem, as your lawyer will file the forms for you.
Additionally, the Virginia Code does not require courts to provide interpreters in civil cases, including personal injury cases.
However, you can always bring one along with you if you feel they would be helpful.
The Virginia Workman’s Compensation Commission, on the other hand, provides interpreters free of charge, provided that you request one at least thirty days before your court date.
What kinds of damages can undocumented immigrants sue for in Virginia?
The whole point of filing a personal injury lawsuit is to seek financial compensation for one or more types of damages.
Undocumented immigrants can sue for the same types of damages as everyone else in Virginia.
The most common types include:
- Property damage
- Medical bills
- Financial inconvenience (such as having to use a rideshare service like Uber to get to work)
- Pain and suffering, emotional distress, and/or loss of enjoyment
- Lost wages
However, any change in (or damage to) an individual’s financial or personal health can result in a claim for damages.
You aren’t limited to the common examples I’ve listed above.
Personal injury law and immigration law are both changing rapidly in Virginia, and it’s not always clear how the two intersect.
This is particularly true when it comes to workers’ compensation cases, which function differently for undocumented immigrants than for others.
Fortunately, a good personal injury lawyer will be able to help you understand this complex area of law.
By choosing an attorney with a background in both personal injury and immigration law, you can increase your chances of receiving the compensation you deserve.