The New Michigan Driver License Law

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.

A further problem is the common confusion, even among nonresidents themselves, between valid status (lawful presence in the U.S.) and a valid visa (a sticker in the passport allowing an alien to apply for admission to the U.S. at a Port of Entry). In E-1 Treaty Trader and E-2 Treaty Investor status, for instance, aliens may be issued a visa for up to a five year period by a consulate outside the U.S., allowing the alien to make multiple entries to the U.S. within that five year period. However, each time the E Treaty alien enters, he or she is granted lawful status for only two years from the date of entry, irrespective of the E visa’s actual expiration date. Moreover, the alien can enter the U.S. on the last day of visa validity and still be granted lawful status for two additional years of lawful status in the U.S. (without a visa stamp in the passport.) Will Secretary of State employees know which document governs status in all cases, or will errors be made that lead to headaches and lost productivity at work, not to mention unnecessary time in the Secretary of State office, for aliens caught up in regulatory dilemmas?

Even in the text of the bill, there is confusion regarding what documents confer lawful status. In Section 307, the bill provides that “a person legally present in the United States includes, but is not limited to, a person…who is the beneficiary of an approved immigrant visa petition or an approved labor certification.” This is not true. Neither of these documents provides lawful status in the United States. Aliens who are the beneficiaries of either of these documents must maintain some other valid, temporary status, such as H-1B professional worker or L-1 intracompany transferee, until the government allows them to apply for permanent residence (a green card) from within the U.S., sometimes years after the petition or labor certification is first filed. In fact, an alien who is the beneficiary of either or both an approved labor certification and immigrant visa petition may be outside the U.S., awaiting final step immigrant visa processing, without ever having obtained prior U.S. work authorization or admission to the U.S. in any nonimmigrant status. Will this person now be allowed to travel as a tourist to Michigan and obtain a driver’s license by the mere fact that he or she is the beneficiary of an approved Labor Certification application or employer-based Immigrant Petition? This person must still show evidence of admissibility and be issued a “Green Card” before being finally admitted to the U.S. as a resident alien.

Even further, the legislation ignores those who are admitted to or present in the U.S. as refugees and asylees – victims of persecution – or recipients of Temporary Protected Status (TPS), whose safe haven and protection is granted by USCIS. These individuals have a stake in obtaining a driver’s license. Each relief category grants permission to be present in the U.S. and afforded the protections of this country, but oftentimes beneficiaries are outside of immigrant and nonimmigrant visa categories contemplated by the enacted legislation.

Clearly, Secretary of State employees will need extensive training in order to determine which documents are valid status documents and which are not. What should have been done, and what will now be required of Secretary of State Land, is the identification of specific immigration categories and concomitant documents evidencing such immigration status in order to have the State authorize issuance of Michigan Driver’s licenses. I suggest that Secretary of State Land look at the latest version of U.S. Citizenship and Immigration Service’s (USCIS) Form I-9, which is the basic document used by all employers in the U.S. to verify the lawful status of new hire employees. She should consider adding a reasonable grace period of 240 days to the validity of any driver’s license issued to an alien in lawful status provided an extension of stay application has been filed with USCIS.

If the State of Michigan wants to limit driver licensing of aliens present in temporary immigration statuses, it should involve the stakeholders and their attorneys in the legislative process so that potential areas of confusion – and the resulting litigation – can be avoided.