The REAL ID Act for International Academic Offices

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. com www. hammondlegal. com www. 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 foreign students, scholars and other noncitizens ¢ Practical problems with REAL ID ¢ State responses to REAL ID ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

REAL ID History ¢ ¢ Repealed 9/11 Commission implementation provisions of Intelligence Reform Act of 2004 (IRA).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. Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

REAL ID Purpose Improve security ¢ Make federal facilities less vulnerable to attack ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

Information Required on REAL ID DL Full legal name ¢ DOB ¢ Gender ¢ DL number ¢ Digital photo ¢ Residence address ¢ Signature ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

Security Features Required Physical features to prevent tampering, counterfeiting, duplication ¢ 3 levels of security features ¢ Machine readable technology ¢ May not exceed 8 year validity ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

DMV Must Follow Minimum Issuance Standards ¢ State must require presentation and verification of: Photo id document l Document showing DOB l Proof of SSN or ineligibility l Proof of residence address l Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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-688 B) Unexpired foreign passport with unexpired US visa Cert. of naturalization or US citizenship REAL ID DL No foreign document except passport Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

Acceptable Proof of Status for Noncitizens ¢ Includes documents acceptable to prove ID, which for noncitizens are: Unexpired I-551 (green card) l Unexpired EAD (I-766 or I-688 B) l Unexpired foreign passport with unexpired US visa l REAL ID DL l Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

DMV Verification Requirements Must verify issuance, validity and completeness of ID and status document with issuer ¢ States must use SAVE to verify immigration status ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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 >60 M records Also used for employment verification pilot programs and for issuance of SSNs Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

Types of Licenses in REAL ID Scheme Conforming, unrestricted REAL ID DL ¢ Temporary REAL ID DL ¢ Non-conforming, non-REAL ID DL ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

Who Qualifies for Unrestricted REAL ID DL? l LPRs (“green card” holders); l Conditional permanent residents; l Asylees; and l Refugees Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

Who Qualifies for Temporary REAL ID DL? o o o Pending asylum applicant; Pending or approved applicant for TPS; Nonimmigrant with valid visa; Deferred action status grantee; and Pending adjustment applicant (to LPR or Conditional LPR status). Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

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

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” l Will be seen as “illegal” l Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

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-751 s pending (can’t get EAD) ¢ Noncitizens who qualify for AOS under INA Sec. 245(i) (can’t leave US) ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

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

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

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 l ¢ All data fields on DL & driving history Confirm SSN with SSA and resolve discrepancies Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

More Requirements for DMVs Ensure security of DL production ¢ Subject DMV personnel to security clearances ¢ Establish fraudulent document training ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

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

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

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

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

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

State Options Not implement REAL ID at all ¢ Create REAL ID compliant ID card ¢ Offer non-compliant DL ¢ Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007

Relevant Websites ¢ ¢ www. ailf. org/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). Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007