Getting a Driver’s License While Waiting for a Decision on an Immigration Benefit Application

So, you’ve being waiting…few weeks have passed since you applied for an immigration benefit and your documents were received by the United States Citizenship and Immigration Services (USCIS). What you don’t know is how much time is going to pass before the USCIS makes a final decision upon your application.  Meanwhile, life continues and the question you want an answer for is: Can I get a driver’s license?

That is one of the most common questions people ask me when they are applying for an immigration benefit.  It is not a question for a lawyer to ignore since it points to a very basic need: mobility! What you really want to know is whether you are going to be restricted from or have the freedom to travel, regardless if we are referring to simple things like driving to the community shopping mall for groceries or having a trip across the state or even the whole Nation. An answer to this question – and knowing what to do if the answer is “yes, you can” – not only will give you peace of mind, but could free you from the burden and anxiety that fear causes. A fear that comes from a realization that driving without a valid driver’s license is a violation of law and this could negatively impact your immigration benefit request.

My answer to your question is: it may be possible to apply for a driver’s license if you meet certain requirements.   Let me explain.

First, it is important to note that granting or not granting a driver’s license is within the power of a State.  This means that the laws, regulations and requirements for a driver’s license application may vary greatly among States.   Second, there are federal laws that the States are obliged to comply with that may ban a person from being a recipient of a State issued driver’s license. One of these laws is the REAL ID Act of 2005 which established minimum security standards for state-issued driver’s licenses and identification cards.  Also, the law prohibits Federal agencies from accepting for official purposes licenses and identification cards from states that do not meet these standards.  Third, having a previous criminal or transit violation record may significantly diminish your chances of having a state-issued driver’s license.

The bottom line is, in addition to comply with State specific regulations, a person that seeks to obtain a driver’s license must have a legal presence in the U.S.  With this in mind, a final aspect to understand is that the law makes a distinction between immigrants and non-immigrants, then the requisites for driver’s licenses that apply for these two are different as well.  We must turn for a moment to the Immigration and Nationality Act (INA) which is the law defining these two terms. INA defines an “immigrant” as person admitted to the United States as a lawful permanent resident or every alien (foreign person) that is not under a non-immigrant class, thus an illegal alien is also an immigrant. Put in simple terms, a non-immigrant is an alien who seeks temporary entry to the United States for a specific purpose (like for vacationing, business matters, as a student, etc.). The non-immigrant person usually has a permanent residence abroad, qualifies for the nonimmigrant classification sought and has no intention to stay permanently in the United States.   

That being said, and after “checking the box” in your immigrant or non-immigrant classification, the next thing to do is search for the specific driver’s license requirements in the State you live in.  Be sure you have all the required documentation.  Let’s see an example (fictitious case).

Griselda González-Gutiérrez is a Florida resident, over 18 years of age, with no criminal record who has never had a driver’s license before. She entered to this country illegally, married a U.S. Citizen but, never sought adjustment of status.  Her husband died 3 months ago and Griselda is petitioning for immigration benefits. Specifically, and without discussing here the requisites for this particular benefit, she submitted for I-360, Immigrant Petition for Amerasian, Widow(er) or Special Immigrant. Last week, Griselda received a document from U.S.C.I.S., a Form I-797, Notice of Action, where she is notified that her application for immigration benefit was received and is being processed.  Bravo!!  That document (Form I-797, Notice of Action) is one of the documents accepted by the FLHSM as proof an immigrant of legal presence.

In order to obtain a state-issued driver’s license, Griselda must:

  1. Understand what kind of applicant she is.  She is not a U.S. citizen, but an alien seeking immigrant benefits. She is an immigrant residing in Florida.
  2. Currently, Florida is in compliance with the REAL ID Act standards. Thus, Griselda must prove that she has a legal presence in the U.S.  In her case, she will present the Form I-797, Notice of Action (in connection to I-360) and the other required documents as set forth in The Acceptable Document Table provided by the FLHSMV.
  3. Understand other Florida’s regulations to issue a driver’s license.  She can find accurate information through the Florida Department of Highway Safety and Motor Vehicle (FLHSMV) web page, https://www.flhsmv.gov/.  For example, if passing a driver’s test is required.
  4. She must gather other required documentation. According to Florida laws, an immigrant seeking to obtain a driver’s license must present documents that prove:
    • Personal identification (like passport, another’s country license card or valid ID)
    • Date of birth
    • Residential address – proof from 2 different sources (like mortgage, deed, utility bills, etc.)
    • Social Security Number (SNN) – if not having an SNN, she will need to present a letter from the Social Security Administration indicating that she was never issued one.

Assuming Griselda complies with all the requirements, she will be able to obtain a State-issued driver’s license for up to one year. 

Nevertheless, since the above example may not be applicable to your case (every person’s case is different), I encourage you to consult with your lawyer before applying for a driver’s license.  Specially, if you have a previous driver’s license record and/or criminal record.

 

This article provides general information and is not intended to provide legal advice to any particular individual.  The author encourages individuals to seek legal advice with a lawyer in order to receive accurate legal orientation aligned with their specific factual situations. This article refers to non-commercial driver’s licenses.

According to 8 USCS § 1572, the term immigration benefit application means “any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act

Passed by Congress in 2005, Public Law 109-13. Visit the Department of Homeland Security webpage for details of these requirements and State compliance updates https://www.dhs.gov/real-id-public-faqs.

Note that legal presence is not the same as legal status for purposes of immigration law.  In the fictitious case presented, Griselda remains as a legal immigrant until the USCIS reaches a decision towards her I-360 petition favorably.

* U.S.C. §1101, INA section 101(a)(15).  See https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.html

Visit http://www.flhsmv.gov/ddl/aila/acceptabledocuments.pdf, for an updated list of documents required to prove legal presence only.