Rural Laws: April, 2002 - Number #3

Since September 11, 2001, most states have made it harder for non-citizens to obtain driver's licenses. The major changes include: (1) requiring applicants to prove they are legally in the US; and (2) tying the duration of the license to the applicant's visa, for instance, a foreigner with a one-year visa gets a one-year license. Virginia, where seven of 19 hijackers got driver's licenses or state identification cards, stopped allowing applicants to present affidavits from local residents to prove identity and is considering legislation that would require applicants to prove they are legally in the US.

California does not give licenses to foreigners who are not legally in the US, but Governor Gray Davis says that "I believe we can fashion a bill which gives people who have been here for a while and are contributing to our economy the right to drive to work, and does not compromise public security." The California Legislature is considering a bill that would automatically register California men ages 18 to 26 with the Selective Service System when they are issued their first driver's license or state identification card. Those who fail to give their consent to forward their names, addresses and Social Security numbers to a federal databank would be denied driver's licenses.

The Tennessee legislature is considering a plan to issue driving certificates, instead of driver's licenses, to immigrants and others who do not have Social Security numbers but want to drive legally in Tennessee. The certificates would provide the same driving privileges as licenses, but they could not be used as an identification card as a driver's license is used. In 2001, Tennessee passed a law that allows people without Social Security numbers to get Tennessee licenses as long as they can prove identity and that they are residents.

The American Association of Motor Vehicle Administrators reported in January 2002 that 20 states allow unauthorized foreigners to obtain driver's licenses, but six are considering ending the practice. The AAMVA has requested $100 million in federal funds to develop new licenses that would include information on drivers' unique physical characteristics (www.aamva.org/). The ACLU charged that the plan would create a de facto national ID.

The AAMVA plan would allow state DMVs to share applicant information with the Social Security Administration, the Immigration and Naturalization Service and the FBI to help them deny licenses to criminals, suspected terrorists and foreign visitors who overstay their visas. About 75 percent of Americans carry some form of DMV-issued ID. The AAMVA says: "Our driver's license has become the most requested form of identification. Because the American people depend on this one card, AAMVA has the responsibility and obligation to do whatever it can to enhance the security of this document to improve public safety and national security."

In many states, migrant advocates are arguing against plans to make it harder for unauthorized foreigners to get licenses, noting that driving is often a necessity in rural areas, and that it is better to have licensed drivers who can get insurance than unlicensed drivers. In Michigan, migrant advocates opposed a bill that would reverse a 1995 Attorney General's opinion that concluded the Secretary of State cannot refuse a driver's license merely because someone is an unauthorized foreigner.

245(i). In March 2002, the House, on a 275-137 vote, approved a four-month 245(i) adjustment of status program. The vote was one more than the two-thirds majority needed under the suspension rules by which the program was brought to the floor. President Bush had urged approval: "I want to show our friends, the Mexicans, that we are compassionate about people who live here on a legal basis, that we don't disrupt the families for people who are here legally." With 245(i), Bush said that relatives "won't have to leave the country, apply, and then come back to be with their family. We believe in family values. We believe good policy keeps families together."

House Majority Whip Tom DeLay (R-TX) said the adjustment of status bill would be the only immigration benefit bill that the House would approve in 2002. The House Immigration Reform Caucus, which opposed 245(i), reported that its membership swelled from 16 before September 11 to 62 in March 2002. Senator Robert C. Byrd (D-WV), who said that 245(i) was an "amnesty for hundreds of thousands of illegal aliens, many of whom have not undergone any background or security check," has placed a hold on the 245(i) program in the Senate.

The 245(i) program permits foreigners who qualify for US immigrant visas, and are in the US when their immigrant visas become available, to pay a $1,000 fine and remain in the US, rather than returning to their countries of origin and applying for their visas at US consulates. If they had to get their immigrant visas at US consulates abroad, they might face three- or 10-year bars on legal entry to the US because they had been illegally in the US.

Some 400,000 foreigners applied to adjust their status in the US before the last four-month 245(i) program expired on April 30, 2001. For the four-month 2002 extension, unauthorized foreigners in the US seeking to adjust their status must: (1) have been in the US since December 20, 2000; and (2) show that the family or employment relationship being used to sponsor them existed before August 15, 2001.

Most of those using the 245(i) provision to adjust status in the US are relatives of settled immigrants who have sponsored their admission. House Majority Leader Dick Armey (R-Texas) said: "The House vote [to approve 245(i)]... sends a message to the world that our country will continue to be a beacon to all who love freedom and the opportunity to live, work and raise a family."

The 245(i) program is not an "amnesty:" it does not allow most of the nine million unauthorized foreigners in the US to become immigrants. Instead, it allows perhaps 200,000 foreigners whose US relatives or employers sponsored them for admission, and who are in the US illegally, to become immigrants without leaving the US. In some media reports, the 245(i) program was described as a "new amnesty," prompting hundreds of foreigners to line up at INS offices in some cities.

The legacy of the 1987-88 legalization program lingers. A February 15, 2002 ruling by US district Judge Lawrence Karlton is raising the hope of some unauthorized foreigners who say that they did not apply for legalization in 1987-88, or the INS rejected their applications, because of brief absences from the US between January 1, 1982 and their applications. The attorneys for the foreigners want the judge to require the INS to mount a publicity campaign to inform potential foreigners of the possibility of "late amnesty," and an 18-month period for foreigners to apply.