Monday, January 31, 2005
Sensenbrenner bill limits driver's licenses issued to visa holders as well.
On Jan 26th Rep Sensenbrenner reintroduced in the House of Representatives, immigration related provisions that he has agreed to withdraw from the Intelligence Reform bill in order to get that legislation passed quickly. As noted in the news, it imposes requirements that effectively preclude states from issuing driver's licenses to undocumented immigrants and tightens the requirements for asylum further.
It also, however, limits the issuance of driver's licenses to visa holders and certain other applicants for immigration benefits. Under the bill (HR. 418, the REAL ID Act of 2005) holders of "a valid, unexpired non-immigrant visa or nonimmigrant visa status for entry into the United States," may be issued a temporary driver's license that will be "valid only during the period of time of the applicant's authorized stay in the U.S. or if there is no expiration date a period of one year. The license issued to visa holders will clearly show that it is TEMPORARY, and have a clear expiration date linked to the person's validity period.
This ignores the fact that all driver's licenses are "temporary" and that it seems unnecessary to emphasize that some are more "temporary" than others. However, more problematic, it is unclear what period of stay governs. The bill appears to be referring to the expiration date of the actual visa in the passport. As we all are aware, many times a person who does not need to travel will not have a current visa in their passport, even though they've extended their stay and have a valid I-94. In addition, it is not unusual for a consulate to issue a visa with an expiration that does not coincide with either the I-94 or the original approval notice.
If my interpretation is correct, visa holders will be required to get a new visa, at a U.S. consulate outside the U.S., before they can get their driver's license renewed. (It is not really a matter of my interpretation but rather how the States will choose to interprete it. Depending on the political climate in the particular state it would be either stricter or more liberal, but not necessarily consistent.) Also, the law provides that in order to get it renewed the visa holder will have to show that the status "by which the applicant qualified" for the temporary license has been extended.
What happens if:
H-1B visa holder is employed in liberal state where proof of I-94 validity is enought and is of a nationality where getting a visa is a major hassle, so does not have current visa. Get's a job offer in a not so liberal state, where he commences work based on the filing of the I-129 application to transfer employment. Tries to get a driver's license in new state. Cannot get one until the H-1B is approved (may be months later) but also must leave the country to get a visa first. In some cases (admittedly worst case, but not uncommon) they will have to go back to their home country and wait out a three to four month process. Morever, since the "status by which the applicant qualified" for the license was based on terminated employment, arguably the temporary license the visa holder has is now invalid in any case.
Slightly differenct scenario, an L-1 holder joins a new company in the same state. The L-1 is not valid for the new employment and so the worker must change to H-1B. However, it is not "the status by which the applicant qualified", so the former L-1 would not be able to get a license renewed but would have to apply for a new license based on a new H-1B visa obtained outside the country.
Also, what about F-1's on OPT? Optional Practical Training is not a visa nor a status for "entry", but the underlying visa may be long expired. They would be in status and authorized to work, yet not able to get a driver's license beyond the expiration of the F-1 visa until they changed status and obtained a new visa.
These are not overly speculative situations based on the way the legislation is worded now. There is no doubt there will be much discussion and negotiation back and forth in the Congress and with the Administration, particularly as negotiation over the President's immigration reform proposals starts heating up.
However, it is important to note how immigration legislation such as this can have an effect (possibly on you) beyond what the media focuses on.
gcf
It also, however, limits the issuance of driver's licenses to visa holders and certain other applicants for immigration benefits. Under the bill (HR. 418, the REAL ID Act of 2005) holders of "a valid, unexpired non-immigrant visa or nonimmigrant visa status for entry into the United States," may be issued a temporary driver's license that will be "valid only during the period of time of the applicant's authorized stay in the U.S. or if there is no expiration date a period of one year. The license issued to visa holders will clearly show that it is TEMPORARY, and have a clear expiration date linked to the person's validity period.
This ignores the fact that all driver's licenses are "temporary" and that it seems unnecessary to emphasize that some are more "temporary" than others. However, more problematic, it is unclear what period of stay governs. The bill appears to be referring to the expiration date of the actual visa in the passport. As we all are aware, many times a person who does not need to travel will not have a current visa in their passport, even though they've extended their stay and have a valid I-94. In addition, it is not unusual for a consulate to issue a visa with an expiration that does not coincide with either the I-94 or the original approval notice.
If my interpretation is correct, visa holders will be required to get a new visa, at a U.S. consulate outside the U.S., before they can get their driver's license renewed. (It is not really a matter of my interpretation but rather how the States will choose to interprete it. Depending on the political climate in the particular state it would be either stricter or more liberal, but not necessarily consistent.) Also, the law provides that in order to get it renewed the visa holder will have to show that the status "by which the applicant qualified" for the temporary license has been extended.
What happens if:
H-1B visa holder is employed in liberal state where proof of I-94 validity is enought and is of a nationality where getting a visa is a major hassle, so does not have current visa. Get's a job offer in a not so liberal state, where he commences work based on the filing of the I-129 application to transfer employment. Tries to get a driver's license in new state. Cannot get one until the H-1B is approved (may be months later) but also must leave the country to get a visa first. In some cases (admittedly worst case, but not uncommon) they will have to go back to their home country and wait out a three to four month process. Morever, since the "status by which the applicant qualified" for the license was based on terminated employment, arguably the temporary license the visa holder has is now invalid in any case.
Slightly differenct scenario, an L-1 holder joins a new company in the same state. The L-1 is not valid for the new employment and so the worker must change to H-1B. However, it is not "the status by which the applicant qualified", so the former L-1 would not be able to get a license renewed but would have to apply for a new license based on a new H-1B visa obtained outside the country.
Also, what about F-1's on OPT? Optional Practical Training is not a visa nor a status for "entry", but the underlying visa may be long expired. They would be in status and authorized to work, yet not able to get a driver's license beyond the expiration of the F-1 visa until they changed status and obtained a new visa.
These are not overly speculative situations based on the way the legislation is worded now. There is no doubt there will be much discussion and negotiation back and forth in the Congress and with the Administration, particularly as negotiation over the President's immigration reform proposals starts heating up.
However, it is important to note how immigration legislation such as this can have an effect (possibly on you) beyond what the media focuses on.
gcf
