On February 25, 2016, the Citizenship and Immigration Services Ombudsman’s Office hosted a public teleconference on issues related to Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants. Individuals whose employers timely file for extension of nonimmigrant status receive an automatic 240-day extension of work authorization while the petition remains unadjudicated. The discussion focused on the impact of the REAL ID Act on how states DMVs treat individuals subject to the 240-day rule for non-immigrant workers.
During the call, the Ombudsman framed the topic of discussion as follows: Federal regulations provide for a 240-day extension of work authorization after a temporary worker’s status expires, if the worker has a pending petition to extend that status. But whether or not those workers can get and maintain a drivers’ license during that time remains an issue. The REAL ID Act requires state drivers’ licenses to conform to certain federal standards. The Act also requires that states verify an individual’s immigration status before issuing a REAL ID-compliant identification card, including a drivers’ license. The lack of guidance as to how state DMVs should handle drivers’ licenses for temporary foreign workers with pending extension of stay petitions has led to a patchwork of state responses.
Some states that comply with REAL ID or are moving toward compliance have taken a hybrid approach. In those states, immigrants whose status has not expired can obtain a REAL ID-compliant license, while those without lawful status — but perhaps who are lawfully present — get a license that is not compliant with the law. A few states offer limited drivers’ licenses or “driver privilege cards” for undocumented immigrants. Foreign workers in the 240-day extension window could request one of those licenses, but they would have to reapply for a regular drivers’ license once their extension-of-stay petitions are approved. Some states that are not compliant with the REAL ID Act accept the I-797C as a document establishing lawful presence, as long as the document can be verified in SAVE.
A representative of USCIS’s Systematic Alien Verification for Entitlements (SAVE) system explained that the agency issued guidance on this issue to state DMVs in 2014. That guidance essentially punted to the states on their treatment of the 240-day extension. SAVE only provides information on an individual’s immigration status — it does not indicate whether a state-level benefit should be granted. In that regard, the states have to look at their own rules and regulations for how to treat the provision of state benefits that are based on immigration status.