By Nicholas J. Rose, Esq. · NY Bar 2003

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Personal Injury Rights for Undocumented Immigrants in New York

By Nicholas J. Rose, Esq.

I'm writing this for the person who got hurt and doesn't have papers, or for the family member who's trying to figure out what to do for someone they care about who got hurt and doesn't have papers. The information here is also relevant for any employer, community member, or organization that works with undocumented New Yorkers.

A lot of people in this situation don't pursue legitimate personal injury cases because they're afraid. The fear is reasonable. The fear is also based on misinformation about how New York law actually works. I want to lay out what the law actually says, what protections exist, and where the real risks live, so you can make an informed decision instead of a scared one.

The short version

If you were injured in New York, at work, on a sidewalk, in a car accident, on a construction site, anywhere, and someone else's negligence caused it, your immigration status does not determine whether you have a personal injury case. You can sue. You can recover. The law on this has been settled in New York for twenty years.

The case that decided this is Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (2006). The decision is at Justia's New York Court of Appeals archive. The Court of Appeals, New York's highest court, held that undocumented workers can bring personal injury claims under New York Labor Law and recover full damages, including lost wages, as long as they did not tender fraudulent work-authorization documents to obtain employment.

The Balbuena line has been followed without serious disturbance for two decades. The Appellate Division decisions in Coque v. Wildflower Estates Developers (2006) and Hernandez v. 151 Sullivan Tenant Corp. (2006) extended the holding. Hernandez upheld a $5.5 million verdict for an undocumented roofer who fell fifty feet, including $2.5 million in past pain and suffering and $3 million in future pain and suffering. The defense's attempt to use immigration status to bar the recovery failed.

This is settled law. Not contested. Not pending. Not in flux.

What you can recover

Three categories are clean.

Medical bills, past and future. No immigration-status complication. Full recovery available, including future medical care projected over your lifetime by qualified experts.

Pain and suffering. No immigration-status complication. The Hernandez case is the proof, $5.5 million in pain-and-suffering damages awarded to an undocumented plaintiff and upheld on appeal.

Loss of enjoyment of life and loss of consortium. Same as any other plaintiff. A spouse can recover for loss of consortium regardless of either spouse's immigration status. Wrongful death damages can be recovered on behalf of the estate of an undocumented decedent, including for surviving family members who live abroad.

Where lost wages get more complicated

Lost wages are recoverable, with one important wrinkle.

The Balbuena test asks: did the worker tender false work-authorization documents to get hired? If no, for example, the worker was paid in cash and never filled out a Form I-9, lost wages are fully recoverable. If yes, for example, the worker used a counterfeit Social Security card or someone else's number, lost wages are barred under the federal Hoffman Plastic decision, but pain and suffering and medical damages still come through.

For workers paid in cash with no documents tendered, lost wages can be proven through bank deposit patterns, money-transfer records (Western Union, MoneyGram), IRS Form 1040 returns filed under an Individual Taxpayer Identification Number (ITIN), informal employer pay stubs, coworker and family testimony, and contemporaneous text messages. ITIN tax returns are the strongest single piece of documentary evidence, they convert "off the books" work into a paper trail. If you've been filing taxes with an ITIN, save those returns.

A separate piece involves how a jury projects future earnings. Per Balbuena, immigration status is one factor a jury may consider, particularly the likelihood the plaintiff will remain in the United States. Defense lawyers argue future earnings should be calculated at home-country wage levels for years after a hypothetical removal. Plaintiffs counter with evidence of long US tenure, US-citizen children, pending immigration applications (U visa, T visa, asylum), and the rarity of actual removal absent criminal triggers.

Attorney-client privilege protects your status

When you hire a lawyer in New York, attorney-client privilege protects everything you share, including your immigration status. The privilege is in CPLR §4503 and is not status-dependent. It binds the lawyer and every member of the lawyer's staff, including translators and paralegals.

The lawyer cannot disclose your immigration status to the court, opposing counsel, or any government agency without your informed consent or a narrow legal compulsion. The New York Rules of Professional Conduct treat immigration status as confidential information regardless of whether it is technically privileged in evidence.

What this means in practice: a defense lawyer cannot ask "are you here legally?" at deposition and expect an answer. Plaintiffs' counsel routinely moves to keep any reference to immigration status out of trial, and courts in personal injury cases generally grant that motion absent a specific, narrow basis (the lost-wages evidentiary fight under Balbuena is the main exception).

Court protections against ICE involvement

New York has a specific statute called the Protect Our Courts Act, Civil Rights Law §28-a, signed December 2020. It bars ICE civil arrests inside, on the property of, or while a person is going to or returning from a New York State courthouse, absent a judicial warrant signed by a federal or state judge.

It applies to state courts. The vast majority of personal injury cases are heard in New York State Supreme Court. The Protect Our Courts Act applies.

ICE administrative warrants don't count. Only judicial warrants signed by a judge satisfy the Act. ICE cannot rely on its own Form I-200 to make a courthouse arrest in a state court.

Federal courthouses are not covered. The Act binds state-court premises only. Cases removed to federal court on diversity grounds have weaker protection.

Most depositions are virtual. Post-COVID, depositions are mostly by video, which sharply reduces in-person exposure. In-court testimony at trial is the highest-exposure moment, and most cases settle before trial.

What about retaliation by an employer?

If a worker is hurt on the job and the employer threatens to call ICE in retaliation for a workers' comp claim or a personal injury case, that threat is a crime under New York law. New York Executive Law and labor protections create civil and criminal liability for employer retaliation based on immigration status. The federal Deferred Action for Labor Enforcement (DALE) program, started in 2024, allows undocumented workers who are parties to labor or comp investigations to apply for deferred action and work authorization through DHS. New York is a participating state. As of 2024, the New York Workers' Compensation Board has issued statement-of-interest letters covering hundreds of workers.

In practice, employer threats of ICE involvement are exactly the kind of retaliation that strengthens the worker's case rather than weakening it. Document the threats. Save the texts. Keep the voicemails.

What about insurance companies using your status against you?

This part I'll be candid about. In some big cases, when there's a large policy and the defense is desperate, the insurance company tries to leverage immigration status to compress settlement. They don't always say it directly. They imply it: take this lower number, or we'll find a way to make immigration status part of the case.

This happens. Most firms don't talk about it. The right response is the same response we use against any defense pressure tactic: file a motion to keep immigration status out of trial, hold the line on case value, and don't accept a low offer driven by status pressure.

I've represented undocumented clients in serious cases for twenty years. I have a current case with a $10 million policy where this exact tactic has come up. The case isn't over. We aren't taking the discount.

How New York's Green Light Law changed driver cases

Driver's License Access and Privacy Act, signed June 2019, effective December 2019. The law allows any New York resident age 16 or older to apply for a standard (non-REAL ID) driver's license regardless of immigration status. DMV cannot share license data with federal immigration agencies absent a court order, and DMV must notify the licensee if any immigration agency requests records.

For personal injury cases involving cars, this matters two ways:

If you have a Green Light license, registration, and insurance, you have full UM/UIM coverage and a clean basis for any first-party claim.
If you were hit by a driver who has a Green Light license, the at-fault driver has insurance you can claim against. The old "no license, no recovery" myth is a six-year-stale defense argument. New York's statute allows undocumented residents to legally license, register, and insure vehicles.

A federal lawsuit challenging the Green Light Law was filed in 2025 by the U.S. Department of Justice. As of 2026, the law remains in effect.

What I tell clients in the first call

When an undocumented client or family member calls, the conversation goes roughly like this:

Your status is protected by attorney-client privilege. What you tell me stays between us.
Filing a personal injury case is not a deportation trigger. ICE does not get notified. The case is in state court, not immigration court.
You can recover for medical bills, pain and suffering, and damages even if there's a documents issue. Lost wages get more complex, but recovery is real.
Most depositions are virtual. In-court testimony is rare and most cases settle before trial.
Contingency fee. No money out of pocket. Our fee comes from the settlement or verdict.
My concierge speaks Spanish and comes to you. The first meeting can happen in your kitchen.

That's the honest landscape. Most of the fear that prevents undocumented New Yorkers from pursuing legitimate cases comes from rumor, not from law. The fear has gotten worse in 2025-2026 with the change in federal enforcement posture. The legal landscape, in New York state courts, has not.

What this means for you

If you or someone in your family was injured in New York and is undocumented, you have rights. The law has been clear for twenty years. The protections work. The recovery is real.

If the situation involves a serious injury, anything that required surgery, hospitalization, ongoing treatment, missed work, or affected long-term function, talk to a lawyer. It doesn't have to be me. But please talk to someone.

When to talk to a personal injury lawyer

For a free consultation in English or Spanish, call 718-261-0546 or reach me through the intake form. I've represented undocumented clients in serious personal injury and Labor Law cases for over twenty years. My concierge is bilingual and has been with the firm for over twenty years. We come to you anywhere in Queens, Brooklyn, the Bronx, Manhattan, or Staten Island.

Su estatus no nos importa. Su lesión sí.

Undocumented Immigrant Personal Injury Rights in New York