Final Rule on REAL ID License and ID Standards

73 Fed. Reg. 5272 (January 29, 2008)

A DHS final rule effective March 31, 2008 establishes minimum standards under the REAL ID Act, for state-issued driver's licenses and identification cards that federal agencies would accept for official purposes on or after May 11, 2008. Under the rule, a state-issued license or ID must meet REAL ID standards in order to be used for the following federal purposes:
  • entering federal facilities
  • boarding federally regulated commercial aircraft
  • entering nuclear power plants

Deadlines

Starting on May 11, 2008, federal agencies cannot accept driver's licenses or ID cards issued by states that are not in compliance with the REAL ID Act, unless the state has requested and obtained an extension of the compliance date from DHS. States seeking extensions must submit a request for an extension to DHS no later than March 31, 2008.

A state that receives an extension will have until December 31, 2009 to come into compliance. A state that receives the first extension will be able to request a second and final extension until May 11, 2011, if it can show that it has met specified milestones towards full compliance. The final extension must be requested by October 11, 2009.

Licenses issued by a state that is not certified to be in compliance with REAL ID and does not request an extension, can no longer be used for the three federal purposes described in the rule, starting on May 11, 2008.


Grandfathering of current licenses and IDs

Effective May 11, 2008, individuals from states who have not obtained an extension of the compliance date from DHS, or who have not submitted a Compliance Package to DHS under the deadlines provided in the final rule, will not be able to use their state-issued license to enter federal facilities, to board federally regulated commercial aircraft, or to enter nuclear power plants.

Residents of states that do choose to comply, however, through submission of their Compliance Plan or a timely filed request for an extension, will be able to continue to use their current license to board commercial aircraft (and for other official purposes) under the following enrollment schedule:
  • Until December 1, 2014, for individuals born after December 1, 1964
  • Until December 1, 2017, for individuals born before December 1, 1964

Key obstacles

Despite NAFSA's objections in its comment to the proposed REAL ID rule, the final rule continues to present serious obstacles to many nonimmigrants who will seek to obtain a REAL ID-compliant license or ID.

Obstacle I. Proof of identity requirement will exclude many nonimmigrants

An applicant must prove identity using one of the documents listed at § 37.11(c)(1). Of the documents listed, however, only two are typically held by nonimmigrants:
  • An "unexpired employment authorization document (EAD) issued by DHS, Form 1-766 or Form I-688B," or
  • An "unexpired foreign passport with a valid, unexpired U.S. visa affixed accompanied by the approved 1-94 form documenting the applicant's most recent admittance into the United States."

Proving identity is fairly straightforward if the nonimmigrant has an EAD card. Those without an EAD, however, will initially only be able to establish identity by means of an "unexpired foreign passport with a valid, unexpired U.S. visa affixed accompanied by the approved 1-94 form documenting the applicant's most recent admittance into the United States."

That will be a problem for the following nonimmigrants:
  1. Those whose visa has expired, even though they continue to be lawfully present in the United States
  2. Those who do not have an I-94 card in their possession
  3. Canadian citizens, who are exempt from the visa requirement and who will therefore not have a visa in their passports

Furthermore, if producing a satisfactory 37.11(c) document is problematic for establishing identity, it will also be problematic for establishing date of birth under § 37.11(d), which requires date of birth to be shown by presenting at least one 37.11(c) document.

Paragraph 37.11(c)(1)(x) allows DHS to designate other acceptable identity documents in the Federal Register, but it has not yet done so.

Obstacle II. Social Security Number requirement poses one more hurdle

Under § 37.11(e), an applicant must also "present his or her Social Security Administration account number card; or, if a Social Security Administration account card is not available, the person may present any of the following documents bearing the applicant's SSN (i) a W-2 form, (ii) a SSA-1099 form, (iii) a non-SSA-1099 form, or (iv) a pay stub with the applicant's name and SSN on it."

Section 37.11(e)(3), recognizing that an applicant who proves identity with the passport/visa/I-94 combo might not be eligible for an SSN, requires such an applicant to instead "demonstrate non-work authorized status." Demonstrating that negative might require the individual to apply for an SSN and be rejected by SSA in order to acquire documentation of their non-work authorized status.

Obstacle III: Nonimmigrants will also have to establish lawful presence in the U.S.

Under § 37.11(g), all applicants must establish lawful presence in the United States.

A nonimmigrant who establishes identity with an EAD, a passport/visa/I-94 combo, or a REAL ID compliant license or ID issued previously, must also establish "satisfactory evidence of lawful status" using documents other than the ones used to establish identity. The only documentation that will suffice is either "a second document" from the list of acceptable identity documents, or "documentation issued by DHS or other Federal agencies demonstrating lawful status as determined by USCIS."

For example, a nonimmigrant who has both an EAD and a valid passport/visa/I-94 combo could present the EAD to prove identity, and the valid passport/visa/I-94 combo to establish lawful presence. Examples of documents "issued by DHS or other Federal agencies demonstrating lawful status as determined by USCIS" might include a Form I-20 or DS-2019, or a Form I-797 approval notice.

Obstacle IV: Identity, SSN, and lawful presence will have to be verified

Presenting the documents to establish identity and lawful presence is only the first part of the process. The DMV is also required to verify those documents, as follows:
  • States must verify any identity document "described in § 37.11(c) or (g) and issued by DHS (including, but not limited to, the 1-94 form described in § 37.11(c)(vi)) through the Systematic Alien Verification for Entitlements (SAVE) system or alternate methods approved by DHS, except that if two DHS-issued documents are presented, a SAVE verification of one document that confirms lawful status does not need to be repeated for the second document. In the event of a non-match, the DMV must not issue a REAL ID driver's license or identification card to an applicant, and must refer the individual to U.S. Citizenship and Immigration Services for resolution."
  • States must verify documents issued by the Department of State with the Department of State "or through methods approved by DHS."
  • States must verify SSNs with the Social Security Administration "or through methods approved by DHS."
The lack of reliability in systems such as SAVE will most likely complicate the verification process.

Obstacle V: Duration of REAL ID limited to one year for nonimmigrants admitted D/S

Even if the nonimmigrant succeeds in getting a REAL ID issued, Section 202(c)(2)(C)(ii) of the REAL ID Act requires that the duration of the driver's license to be limited to the period of the person's authorized stay or in the case of no specific period, a duration of one year.

In the preamble to the rule, DHS notes that, 'since F and J nonimmigrants are admitted for "duration of status," which is an indeterminate period, they would normally be issued licenses valid for one year.'

That would require students and exchange visitors who are authorized to remain in the United States for more than one year to apply for an extension each year. Although the regulation allows REAL ID extensions to be processed remotely (i.e., not in person), the expense and logistics of such annual renewals will present a burden, and not all states have a remote processing system set up.


Other Resources

NAFSA's REAL ID Resource Page
Final Rule on REAL ID License and ID Standards2008-01-29Final Rule on REAL ID License and ID Standards PDF