Since 2013, a growing number of states have been issuing driver’s licenses in one form or another to undocumented workers. New York and New Jersey are just joining the list that includes California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Oregon, Nevada, Utah, Vermont, Washington, and the District of Columbia. The trend is continuing in other states.

Following passage of the New York “Green Light” bill, the Trump Administration has decided to conduct “a departmentwide study of the effects of issuing state driver’s licenses to undocumented immigrants.” A DHS spokeswoman said the study (and possible litigation) is about national security, because these laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Most of the states that are issuing “driving only” licenses have large populations of undocumented immigrants. Granting driver’s licenses makes life much easier for undocumented immigrants. State legislators believe it also contributes to local economies. Undocumented immigrants will buy more cars, insurance, and gasoline and will pay more license-related fees. Because undocumented immigrants will still have to pass all required driving tests, states also believe that licensing these individuals results in safer drivers.

Driver’s licenses issued to undocumented immigrants will not be REAL ID-compliant. The REAL ID law, which will go into full effect on October 1, 2020, establishes security standards for the issuance of driver’s licenses and other identification that are needed to enter federal facilities and nuclear power plants and to board airlines – even for domestic flights. To obtain a REAL ID compliant driver’s license, an individual must be legally in the country, among other requirements. Under the REAL ID regulations, states may continue to issue licenses that are not REAL ID-compliant, but those must be marked prominently with annotations such as “not for federal identification purposes” or “driving only.” Because they are not valid for federal identification, licenses so marked should not be accepted as List B documents for Form I-9 or E-Verify purposes.

While undocumented workers in many states will be able to obtain driver’s licenses, some states continue to deny driver’s license renewals to foreign nationals who are legally in the United States in valid status and have valid work authorization, but are waiting for visa extension approval notices. Because of USCIS processing delays and because petition extensions cannot be filed more than six months in advance of expiration, many foreign nationals are forced to premium process cases to obtain the necessary documentation to timely renew driver’s licenses.

Jackson Lewis attorneys are available to assist you in advising employees regarding REAL ID and timely driver’s license renewals.