the real id act for international academic offices presented by denise c. hammond, esq. to the...

The REAL ID Act for International Academic Offices

Presented by Denise C. Hammond, Esq.to the

Washington Area Foreign Student & Scholar Advisors June 22, 2007

dchammond@tobinoconnor.comwww.hammondlegal.comwww.tobinoconnor.com

(202) 362-5907

Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

Scope of Presentation

Real ID purpose and background Summary of proposed regulations Implications for foreign students,

scholars and other noncitizens Practical problems with REAL ID State responses to REAL ID


Central Concept of REAL ID

Federal agency … May not accept for official purpose… A DL issued by a state… That does not verify proof of lawful

status. Undocumented immigrants should not

have DLs.


REAL ID History

Repealed 9/11 Commission implementation provisions of Intelligence Reform Act of 2004 (IRA).

IRA included negotiated rulemaking process to establish federal standards for DLs.

US DOT solicited interested parties (NCSL, NGA, AAMVA, etc).

REAL ID halted negotiated rulemaking.


REAL ID Summary

REAL ID Act of 2005 signed 5/11/05 Part of larger appropriations bill Mandates federal standards for state

driver's licensing by 5/11/08 Creates security requirements Limits REAL ID DLs and ID cards to

persons in lawful status Licenses from noncomplying states

unacceptable for “federal purposes” DHS proposed regulations 3/1/07.


REAL ID Purpose

Improve security Make federal facilities less vulnerable

to attack


Is Purpose Served?

REAL ID Act would not have prevented 9/11 Undermines national security by pushing

undocumented in shadows Limits law-enforcement value of DMV databases Makes it harder to track noncitizens Inconsistent with highway safety Denies DLs to many in lawful status Onerous requirements for all applicants Creates opportunities for identity theft Unfunded mandate to states


Information Required on REAL ID DL

Full legal name DOB Gender DL number Digital photo Residence address Signature


Security Features Required

Physical features to prevent tampering, counterfeiting, duplication

3 levels of security features Machine readable technology May not exceed 8 year validity


DMV Must Follow Minimum Issuance Standards

State must require presentation and verification of:Photo id documentDocument showing DOBProof of SSN or ineligibilityProof of residence address


Acceptable Identity Documents Valid unexpired US passport Certified copy of US birth certificate Consular report of birth abroad Unexpired I-551 (green card) Unexpired EAD (I-766 or I-688B) Unexpired foreign passport with unexpired

US visa Cert. of naturalization or US citizenship REAL ID DL No foreign document except passport


DMV Must Require Evidence of Lawful Status US citizen Lawfully admitted for “permanent or

temporary residence” Conditional permanent residence Asylee or refugee (including pending) Nonimmigrant visa or status TPS (approved or pending) Deferred action Pending adjustment applicant


Acceptable Proof of Status for Noncitizens

Includes documents acceptable to prove ID, which for noncitizens are:

Unexpired I-551 (green card)Unexpired EAD (I-766 or I-688B)Unexpired foreign passport with

unexpired US visaREAL ID DL


DMV Verification Requirements

Must verify issuance, validity and completeness of ID and status document with issuer

States must use SAVE to verify immigration status


SAVE Database

Systematic Alien Verification for Entitlements

Gives Federal, state, and local government agencies access to immigration status information to determine benefits eligibility

Includes immigration status information on >60M records

Also used for employment verification pilot programs and for issuance of SSNs


Problems with SAVE

Erroneous information DHS estimates 14.1% (1 out of 7) queries

are referred for secondary verification Millions of foreign born/immigrants in US

(more than 31 million in 2000) Secondary verification is slow No way to correct errors Traffic will increase under REAL ID


Types of Licenses in REAL ID Scheme

Conforming, unrestricted REAL ID DL Temporary REAL ID DL Non-conforming, non-REAL ID DL


Who Qualifies for Unrestricted REAL ID DL?

LPRs (“green card” holders);Conditional permanent residents;Asylees; andRefugees


Who Qualifies for Temporary REAL ID DL?

o Pending asylum applicant;o Pending or approved applicant for

TPS;o Nonimmigrant with valid visa;o Deferred action status grantee; ando Pending adjustment applicant (to LPR

or Conditional LPR status).


Characteristics of Temporary DL

Valid for period of stay or 1 year Must show as “temporary” Must show expiration date Cannot be renewed unless status is

extended by DHS Status documents must be verified

through SAVE Must be renewed in person


Problems With 1-Year Limit on Temporary REAL ID DL

Applies to Js, Fs and others with D/S Must renew DLs annually Those with EADs will never get a full

1-year DL because of delays in EAD issuance


Non-Conforming Licenses

Must state that it is not acceptable by federal agency for official purpose

Must use unique design or color indicator “Scarlet Letter”Will be seen as “illegal”


Who Will Not Qualify for A REAL ID DL? Nonimmigrants with expired passports or

visas (includes F, J, H, O, TN, E-3) Nonimmigrants with timely EOS or COS

pending Canadians without green card or EAD (they

are visa-exempt) Asylees and refugees lacking “short list”

documents (may have I-94, judge’s order, court decision, I-571 Refugee Travel Document, but not passport or EAD)


Who Else Will Not Qualify for A REAL ID DL?

Applicants for asylum (referred to IJ, appeal pending, etc.) even though in “stay authorized by AG”

LPRs with expired green cards CPRs with expired cards who have

timely I-751s pending (can’t get EAD) Noncitizens who qualify for AOS

under INA Sec. 245(i) (can’t leave US)


Others Who Will Not Qualify for a REAL ID DL Parolees and other visa exempt

noncitizens Nonimmigrants admitted under

automatic visa revalidation regulation Noncitizens in TPS when EAD

extended by operation of law Applicants for TPS status Anyone without SAVE verification


Still Others Who Will Not Qualify for a REAL ID DL

Noncitizens granted other forms of relief (withholding or cancellation of removal, relief under Convention Against Torture, etc.)

Noncitizens awaiting AOS under special laws (Cubans, Nicaraguans)


DMV Exceptions Process

DMVs can adopt exceptions process for applicants who cannot present documents for reasons beyond their control.

Exceptions process may not be used to show lawful status.


Other Requirements for DMVs Capture/retain ID source documents (10

yrs) Retain paper copies Capture/retain facial image Provide electronic access to DMV records

to all other states All data fields on DL & driving history

Confirm SSN with SSA and resolve discrepancies


More Requirements for DMVs

Ensure security of DL production Subject DMV personnel to security

clearances Establish fraudulent document training


REAL ID Shortfalls

Grossly oversimplifies a very complex immigration system

Short list of acceptable documents excludes many in lawful status

Will unfairly deny DLs to many Immigration status can be moving

target SAVE database fraught with error


Privacy Implications

Increases risk of identity theft Exposes sensitive personal data of all

DL applicants to theft Background checks on DMV

employees do not prevent abuse Identity theft/fraud can be exploited by

terrorists


Possible Fixes

Extra-regulatory dynamic guidance on acceptable documents of status

Allow exceptions process Allow expired visas and passports Allow I-94 as proof of status Delay SAVE verification requirement until system is

fixed and noncitizens can correct errors Impose time limits on SAVE verification Create SAVE appeal process Extend one-year limit on temporary REAL ID DLs


State Responses

Exorbitant unfunded mandate. DHS estimated the cost of

implementation at $23.1 billion over 10 years, of which $10 billion to $14 billion are costs to states.

To date, Congress has appropriated $40 million to assist states with implementation, of which only $6 million has been obligated.


Some States “Opting Out”

Many states passed laws opting out or declaring opposition (SC, MT, WA, NH, AR, HI, ID, ME, TN)

2 states passed resolutions permitting delay pending review (OK, GA)

1 state left out funds to implement REAL ID (ID)

7 states have laws pending to reject REAL ID (AZ, CO, IL, MN, MO, TX, WVA).


State Options

Not implement REAL ID at all Create REAL ID compliant ID card Offer non-compliant DL


Relevant Websites

www.ailf.org/lac/lac_realidresources.shtml - American Immigration Law Foundation

www.epic.org/privacy/id_cards - Electronic Privacy Information Center.

www.ncsl.org/programs/lis/privacy/idsystems.htm - National Conference of State Legislatures.

www.nilc.org/immspbs/DLs/index.htm - National Immigration Law Center, "Immigrants & Driver's Licenses" (resources about the impact of REAL ID on immigrants and state driver's license laws).

the real id act for international academic offices presented by denise c. hammond, esq. to the...

Documents

real id slide

real id dls

real id summary real

copyright tobin

real id history

ewing richard

us citizenship real

real id state responses