February 20, 2009
This past December, Michigan companies, universities, and the legal non-permanent resident aliens possessing federal government authorizations to work, study or receive training in our state received a shock from Attorney General Mike Cox when, apparently without any Federal immigration law counsel, he issued a binding opinion that Michigan driver’s licenses could only be issued to U.S. citizens and permanent residents. Foreign university students, multinational managers, executives and technology specialists transferred temporarily to companies in the U.S., temporary foreign professional workers, and other aliens lawfully present in Michigan for temporary assignments or studies suddenly had no access to an important government-issued identity document used in everyday American life.
On February 19, 2008, in response to pressure from affected companies, universities, and individuals, Governor Granholm signed House Bill No. 4505, intended to alleviate the problems caused for legal nonresidents of Michigan by Cox’s opinion. Michigan now considers someone to be a resident for licensing purposes if he or she “resides in this state and…is legally present in the United States,” an improvement over the prior opinion’s failure to recognize that legal presence is not limited to U.S. citizenship or permanent residence. However, the new law has some flaws that may turn out to be far-reaching and thus subject to widespread litigation.
First, and most important, the law states that Michigan driver’s licenses issued to legal aliens will expire “on the date the person is no longer considered to be legally present in the United States,” in contrast to a U.S. citizen or Permanent Resident license which will be valid for four years. The problem here is that some nonimmigrant statuses are short in duration – TN status, for instance, available to Canadians and Mexicans in certain professional fields since the NAFTA treaty, is generally valid for one year periods, requiring the worker to play an endless catch-up game between obtaining a yearly extension of nonimmigrant status (often in a lengthy mail-in process requiring three to four months) and annual driver’s license renewals. Spousal dependents of TN workers will feel the same frustration.
Most other temporary nonimmigrant statuses last only two or three years, creating similar problems at renewal time. However, U.S. immigration law allows temporary nonimmigrants in many nonimmigrant classifications to remain lawfully in the U.S. for 240 days past the expiration of their status documents so long as they have filed for a timely extension of stay application. This means that, even though lawfully present in the U.S., aliens waiting for an extension after the expiration of their status documents will have an expired driver license and no way of obtaining a new one.