REAL ID Act of 2005

Pub.L. 109–13 (May 11, 2005)

The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 was signed into law on May 11, 2005. Division B of this legislation contains the REAL ID Act, as well as other immigration provisions that create a new E-3 category for Australian workers in specialty occupations, and allow recouping unused Schedule A numbers.

• DHS Final Rule Published January 29, 2008

Summary

I. Driver's License and ID Provisions

The REAL ID Act's driver's license and ID provisions at Title II, once implemented, will prohibit federal agencies from accepting for any official purpose a state-issued ID card or driver's license that does not meet numerous minimum requirements, including verifying immigration status through SAVE.

A. Creates Federal Standards for State Issuance of Driver’s Licenses. The REAL ID Act sets minimum documentary and issuance standards that must be reached by each state for the state’s driver’s licenses and identification cards to be recognized for any federal purpose, including boarding airplanes or entering federal buildings. It is important to note that this portion of the law does not become effective until 3 years after enactment.

The law ties eligibility for a driver’s license to maintenance of proper immigration status. For nonimmigrants, this means that the driver’s license must expire at the same time that the person’s period of authorized stay expires. Unfortunately for students and exchange visitors, those whose period of authorized stay has no definite end date must only receive a driver’s license that is valid for one year. Proof of extension of status by the Department of Homeland Security must be provided to obtain a new driver’s license after the one year period. This requirement presents a problem for those admitted for duration of status as no additional documentation is provided.

States are required to verify documentation provided to determine legal presence in the United States. To this end, states must enter into Memos of Understanding by September 11, 2005 with DHS to utilize the Systematic Alien Verification for Entitlements (SAVE) Program. Verification of Social Security number with the Social Security Administration is also required.

The REAL ID Act sets out extensive requirements for states to maintain copies of documentation provided to obtain licenses, use of technology and security features to stop tampering and fraud, facial imaging, ensuring the security of the location with licenses and identification documents are produced, security clearances for those who produce licenses and identification cards, and the sharing of information with other states.

II. Miscellaneous Immigration Provisions

A. H-2B Provisions. Included in Title IV is the “Save Our Small and Seasonal Businesses Act of 2005” that provides relief to employers seeking to hire a skilled or unskilled worker under the H-2B visa. It exempts from the 66,000 cap workers who have previously granted H-2B visas to work in the United States in the past three years and who return in the 2005 or 2006 fiscal years to work for the same employer. The law requires a $150 fraud prevention and detection fee and sets fine limits for employers who show a “substantial failure” to comply with the H-2B requirements.

B. E-3 Visas Category for Australians. Section 501 adds an E-3 category to the treaty trader/treaty investor visa for Australian nationals who perform services in a specialty occupation as defined by the H-1B category. There is an annual E-3 visa cap of 10,500 per fiscal year. Labor attestations are required.

C. Limited Recapture of Unused Immigrant Visas. Section 502 amends section 106(d) of the American Competitiveness in the 21st Century Act (AC21) to allow unused employment based immigrant visas from Fiscal Years 2001 through 2004 to be recaptured and used in future Fiscal Years when the yearly quota is reached. Use of the recaptured visas is limited to Schedule A immigrants including: nurses, physical therapists, performing artists of exceptional ability, and their spouses and children. The total number of visas issued under this provision may not exceed 50,000.

III. Miscellaneous

A. Asylum. Title I includes positive and negative changes in asylum law. The 10,000 cap on the number of annual adjustment of status (green cards) is eliminated along with the 1,000 a year cap on asylum-based coercive population control. It restores the opportunity for asylum seekers to appeal denials. The new law will make it harder for refugees to obtain asylum in the United States by requiring asylum applicants to meet a higher standard of proof, making it less difficult for judges to reject asylum claims.

B. Fence Construction at the Border. Title I gives the Department of Homeland Security the power to preempt any federal or state law to construct border fences with limited judicial review.