1. 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

2. Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007 Scope of Presentation Real ID purpose and background Summary of proposed regulations Implications for foreign students, scholars and other noncitizens Practical problems with REAL ID State responses to REAL ID

3. 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.

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 Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007 REAL ID History Repealed 9/11 Commission implementation provisions of Intelligence Reform Act of 2004 (IRA).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

5. 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.

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

7. 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

8. 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

9. 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

10. 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 Document showing DOB Proof of SSN or ineligibility Proof of residence address

11. 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-688B) Unexpired foreign passport with unexpired US visa Cert. of naturalization or US citizenship REAL ID DL No foreign document except passport

12. 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

13. 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) Unexpired EAD (I-766 or I-688B) Unexpired foreign passport with unexpired US visa REAL ID DL

14. 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

15. 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 >60M records Also used for employment verification pilot programs and for issuance of SSNs

16. 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

17. 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

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

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

20. 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

21. 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

22. 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” Will be seen as “illegal”

23. 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)

24. 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-751s pending (can’t get EAD) Noncitizens who qualify for AOS under INA Sec. 245(i) (can’t leave US)

25. 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

26. 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)

27. 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.

28. 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 All data fields on DL & driving history Confirm SSN with SSA and resolve discrepancies

29. 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

30. 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

31. 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

32. 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

33. 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.

34. 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).

35. 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

36. Copyright Tobin, O'Connor, Ewing & Richard June 22, 2007 Relevant Websites www.ailf.org/lac/lac_realidresources.shtmlwww.ailf.org/lac/lac_realidresources.shtml - American Immigration Law Foundation www.epic.org/privacy/id_cardswww.epic.org/privacy/id_cards - Electronic Privacy Information Center. www.ncsl.org/programs/lis/privacy/idsystems.htm www.ncsl.org/programs/lis/privacy/idsystems.htm - National Conference of State Legislatures. www.nilc.org/immspbs/DLs/index.htmwww.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).