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Q & A: Driver’s Licenses

Status of the Debate:  Representative Jeff Flake (R-AZ) introduced H.R. 655 in February of 2003. This measure would bar federal agencies from accepting for any identification-related purpose any state-issued driver’s license, or other comparable identification document, unless the state requires that such licenses or documents issued to nonimmigrant aliens expire upon the expiration of the aliens’ nonimmigrant visa. At the same time, some state officials have linked the denial of driver’s licenses to undocumented immigrants to efforts to combat terrorism, alleging that the driver’s licenses that several of the terrorists obtained facilitated their activities. (However, the terrorists did not need U.S.-issued driver’s licenses to board planes on September 11 because they had foreign passports that would have enabled them to board.)

Can I qualify for a driver’s license if I am illegally in the U.S.?

It depends on where you live.  Since September 11, many states have considered proposals to tighten the rules regarding driver’s license eligibility and to further restrict immigrants’ access to driver’s licenses. Fortunately, however, a number of states have also introduced legislation which will grant immigrants greater access to driver’s licenses. 

Motor vehicle departments in 18 states (HI, IL, MI, MT, NE, NV, NH, NM, NY, NC, ND, OR, RI, TN, UT, VT, WA and WI) do not require driver’s license applicants to be legal residents, but the application process could be difficult without a social security card.

I heard that in California, I can apply for a driver’s license even if I am here illegally. Is this true?

No.   Former CA Governor Gray Davis signed into law a bill that would have allowed undocumented noncitizens to obtain driver’s licenses.  However, when Governor Swartzennegar was elected to the governor position, he immediately called for the repeal of this law in 2004 and signed a measure into law, repealing the law.  Therefore, in CA, undocumented immigrants cannot currently obtain driver’s licenses.

I am in the U.S. legally on a temporary work or visitor’s visa.  Can I obtain a driver’s license?

Yes, if you have proof of your legal presence.   Most Department of Motor Vehicle offices require that you prove that you are legally present in the U.S. by submitting any of the following, with your certified birth certificate:

  • Temporary Resident Identification Card
  • Canadian Passport/Birth Certificate
  • Non-resident Alien Canadian Border Crossing Card
  • Valid foreign passport with a valid Record of Arrival/Departure (form I-94)*
  • Employment Authorization Card
  • Refugee travel document
  • Valid I-94 stamped “Refugee,” “Parole or Parolee,” “Asylee,” or Section 207, Section 208, Section 209, Section 212d(2), HP or PIP
  • Immigration judge’s order granting asylum
  • Notice of Action (I-797 Approved Petition)
  • Mexican Border Crossing Card with valid I-94

If your foreign passport with a valid I-94 shows that you are only here for 6 months or less, it may be very difficult to obtain a driver’s license, because DMV may not see the need for you to have one if you are only here for a short period of time and you can use an international driver’s license.

I entered the U.S. with a valid visa, but I did not return to my home country when I was supposed to.  Now that I am married to a U.S. citizen, can I obtain a driver’s license?

The fact that a noncitizen marries a U.S. citizen is not enough to qualify the noncitizen for a driver’s license. However, if the noncitizen entered legally and his/ her U.S. citizen spouse filed for adjustment of status and work authorization based on the marriage, then the noncitizen spouse should be able to get work authorization.  When the noncitizen receives his or her temporary work authorization, called the EAD which is usually valid for 1 year at first, then the noncitizen can take this EAD card to the social security office to get a social security card and to the local Department of Motor Vehicles (DMV) to obtain a driver’s license.

The above information is general in nature and is not intended to be considered or relied upon as legal advice.  It is always wise to consult an attorney before filing any immigration paperwork.

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