May 29, 2013
ISSUANCE OF DRIVER'S LICENSES TO UNDOCUMENTED IMMIGRANTS
By: Michael Csere, Legislative Fellow
You asked which states issue driver's licenses to undocumented immigrants.
There are currently six states with statutes or regulations that implicitly give undocumented immigrants access to driving privileges: Illinois, Maryland, New Mexico, Oregon, Utah, and Washington. All six states issue (or will issue) cards granting this privilege, but many make the cards invalid for identification purposes. Additionally, the Colorado legislature recently passed a law that would grant this privilege, but Governor Hickenlooper has yet to sign it into law. Other states, including Connecticut, Nevada, North Carolina, Rhode Island, and the District of Columbia, are currently considering similar measures.
Proponents of licensing undocumented immigrants to drive argue that it promotes road safety, reduces unlicensed drivers, and allows these immigrants to work and support their families. Opponents argue that licensing undocumented immigrant drivers leads to fraud and security concerns, and encourages employment of undocumented immigrants over documented immigrants and U.S. citizens.
Several states that previously permitted undocumented immigrants to drive stopped doing so between 2003 and 2010 for various reasons; these reversals resulted from both legislative and executive actions. Two of those states, Maryland and Oregon, have reversed course again; both states passed laws in May 2013 that will once again grant driving privileges to undocumented immigrants.
Undocumented immigrants who are in the U.S. under the Obama Administration's Deferred Action for Childhood Arrivals (DACA) program may qualify for a driver's license if the states where they reside accept the DACA documentation for licensing purposes. A number of states, including Connecticut, are granting licenses to successful DACA applicants.
STATES THAT CURRENTLY GRANT DRIVING PRIVILEGES TO UNDOCUMENTED IMMIGRANTS
A new Illinois law, which goes into effect in November 2013, allows the state to issue a temporary visitor's driver's license to an applicant who (1) has resided in the state for more than one year, (2) is ineligible to obtain a social security number (SSN), and (3) is unable to present documentation authorizing his or her presence in the U.S. Like Utah, Illinois's license may not be used to prove identity. The law requires applicants to be photographed and the photos are entered into the state's facial recognition database to verify identify (2012 Ill. Legis. Serv. P.A. 97-1157 (S.B. 957)).
A new Maryland law, effective January 1, 2014, requires the state to issue driver's licenses regardless of an applicant's lawful status in the U.S. or whether he or she has a valid SSN. It repeals a 2009 law that established a lawful presence requirement for all driver's license applicants.
To obtain a driver's license, an applicant who cannot show lawful presence or a valid SSN must provide documentary evidence that he or she, for each of the previous two years, has (1) filed a Maryland income tax return or (2) resided in the state and was claimed as a dependent by an individual who filed a Maryland income tax return. Additionally, the applicant must be otherwise eligible for the issuance or renewal of a driver's license but for the absence of a lawful status or valid SSN.
Federal agencies may not accept these licenses for official purposes and the licenses must state so on their face (Maryland Highway Safety Act of 2013 (S.B. 715, CH 309)).
While a SSN is required for most New Mexico residents to obtain a license, state law requires the secretary of taxation and revenue to accept the individual taxpayer identification number as a substitute for a SSN and issue a license regardless of immigration status. The secretary may establish by regulation other documents as a substitute for a SSN or individual taxpayer identification number (N.M. Stat. § 66-5-9).
For three consecutive legislative sessions, Governor Susana Martinez has pushed to repeal the law, arguing that it leads to fraud, human trafficking, organized crime, and significant security concerns. Thus far, the repeal has failed to pass. Repeal opponents argue that the law helps reduce unlicensed and uninsured drivers and fosters cooperation between law enforcement and immigrants.
A new Oregon law eliminates 2008 requirements that driver's license applicants provide (1) proof of legal residence in the U.S. and (2) verified SSNs or proof of eligibility for a SSN. Beginning January 1, 2014, the state must issue a “driver card” to an applicant regardless of legal presence if the applicant:
1. complies with all requirements for the type of privilege being sought other than legal presence,
2. provides proof of identity and date of birth by submitting one of several specified documents,
3. provides proof of Oregon residency for more than one year as of the application date,
4. provides a valid SSN or a written statement that he or she has not been assigned a SSN, and
5. pays all required fees.
The driver card must contain a feature distinguishing it from a driver's license and driver's permit, and may be used only for limited purposes (e.g., evidence of a grant of driving privileges, identifying the person as an organ donor, emancipated minor, veteran, etc.). The card is valid for four years (2013 Oregon Laws Ch. 48 (S.B. 833)).
Utah issues a “driving privilege card” to someone who does not provide evidence of lawful presence in the United States. The driving privilege card is not valid for identification purposes. Utah amended its law in 2011 to require fingerprinting of all such applicants (Utah Code § 53-3-207).
In Washington, if a driver's license applicant cannot provide any of the statutorily specified identifying documents (e.g., SSN), the Department of Motor Vehicles may (1) consider other documentation to ascertain identity or (2) label the license “not valid for identification purposes.” (Wash. Rev. Code § 46.20.031, 46.20.035; Wash. Admin. Code 308-104-040).
A 2011 attempt to repeal the law failed mainly because legislators (1) believed that additional verification measures required to end licensing for undocumented immigrants would have cost as much as $1.5 million and (2) were worried about the state's ability to harvest apples if undocumented immigrants could not drive to the orchards.
STATES CONSIDERING GRANTING DRIVING PRIVILEGES TO UNDOCUMENTED IMMIGRANTS
In May 2013, the Colorado legislature approved a bill (the Colorado Highway and Community Safety Act) that allows undocumented immigrants to obtain driver's licenses. As of May 29, 2013, Governor Hickenlooper has not yet signed the bill into law.
Under the act, individuals not lawfully present in the U.S. may apply for a driver's license or other specified identification documents. The state must issue such a document to an applicant who:
1. meets all qualification requirements except for lawful presence;
2. signs an affidavit that he or she (a) is currently a Colorado resident, provides proof of such residence, and provides proof of filing a Colorado resident income tax return or (b) has continously resided in Colorado for the immediately preceding 24 months and presents evidence of such residence;
3. documents an individual taxpayer identification number issued by the federal Internal Revenue Service (IRS);
4. affirms in an affidavit that he or she has applied or will apply for legal presence; and
5. presents one of several specified documents from the applicant's country of origin.
The license or identification document is not valid for federal identification, voting, or public benefit purposes, and that restriction must be clearly displayed on the card. The card is valid for three years and is renewable (2013 Colorado Senate Bill No. 251).
Several additional states and the District of Columbia are currently considering legislation that would allow undocumented immigrants to drive. These include California, Connecticut, Nevada, North Carolina, and Rhode Island.
STATES THAT PREVIOUSLY ISSUED LICENSES TO UNDOCUMENTED IMMIGRANTS
During the last decade, several states that previously permitted undocumented immigrants to drive reversed themselves and stopped allowing such privileges (although at least two have since decided to allow such privileges again). Table 1 lists in reverse chronological order those states, the year they stopped allowing undocumented immigrants to drive, and the citations to the public acts that codified the changes.
Table 1: States that Stopped Granting Driving Privileges to Undocumented Immigrants (2003-2010)
2010 Hawaii Laws Act 38 (H.B. 134)
2009 Maryland Laws Ch. 390 (H.B. 387)
2008 Me. Legis. Serv. Ch. 648 (H.P. 1669) (L.D. 2309) (WEST)
2008 Mich. Legis. Serv. P.A. 7 (H.B. 4505) (WEST)
2008 Oregon Laws 1st Sp. Sess. Ch. 1 (S.B. 1080)
2004 Tennessee Laws Pub. Ch. 778 (S.B. 3430)
2003 Cal. Legis. Serv. 3rd Ex. Sess. Ch. 1 (S.B. 1) (WEST)
Although some of these changes were initiated by the executive branch, all were eventually codified by the legislature. Among the reasons cited were:
1. compliance with the federal REAL ID Act,
2. response to high-profile identity fraud cases,
3. concern about being a magnet for illegal immigrants from surrounding states,
4. concern about immigrants taking jobs from U.S. citizens,
5. consistency with other states, and
6. political pressure.
As noted above, in May 2013 Maryland and Oregon each passed new laws re-authorizing them to grant driving privileges to undocumented immigrants.
DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)
In 2012, the U.S. Homeland Security secretary announced the implementation of the DACA program. Certain individuals who arrived in the United States as children and meet specific criteria can request “deferred action,” which is a prosecutor's discretionary determination to defer an individual's removal from the U.S.
The federal government issues work authorization forms and Social Security cards to successful DACA applicants. Those two documents are enough to qualify for a driver's license in many states. Thus, several states have begun to or will issue driver's licenses to successful DACA applicants. The National Immigration Law Center reports that officials in at least 45 states (including Connecticut as well as all states with laws granting driving privileges to undocumented immigrants generally) have demonstrated, either through statements or the granting of licenses, that DACA recipients will be eligible for a driver's license or driver's privilege card. Arizona and Nebraska have announced that they intend to deny driver's licenses to DACA recipients.
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