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DACA – Which States Issue Driver’s Licenses and Why?

A report from the Pew Center on States provides a list of states where officials have confirmed that the state will issue driver’s licenses and where the state will not issue driver’s licenses to DACA (Deferred Action for Childhood Arrivals) recipients. Iowa has recently been added to the list of states not issuing driver’s licenses. Here is the list:

States issuing Driver’s Licenses:

  • California
  • Connecticut
  • Delaware
  • Florida
  • Georgia
  • Illinois
  • Indiana
  • Massachusetts
  • Maryland
  • Nevada
  • New Mexico
  • Tennessee
  • Texas
  • Utah
  • Virginia
  • Washington
  • Wisconsin

States not issuing Driver’s Licenses:

  • Arizona
  • Arkansas
  • Iowa
  • Kansas
  • Michigan
  • Mississippi
  • Nebraska

The main argument for not granting a driver’s license is that these states say they would be violating their own state laws. The state laws in question generally deny driver’s licenses and state IDs to those persons that are not legally present in the United States. The state determines if a person is legally present by verifying their legal status with the federal government’s USCIS (United States Citizenship and Immigration Services).  The DACA program only granted deferred action, which prevents a person from being removed(deported). The DACA program does not grant legal status. These states have equated legal status with legal presence to show a  conflict with state law.

The problem with this line of reasoning is that legal status and legal presence are different concepts under immigration law. It is often true that not having legal status means a person does not have legal presence, however, this is not necessarily always true. Although this issue might need to be decided by a federal court or the Board of Immigration Appeals, there is a strong argument that a person granted deferred action has legal presence in the United States without having legal status.

A person with legal status usually can change their status say from a student to that of an employee, can become eligible to apply for a green card in the United States, and has access to certain state and federal benefits. A person with legal presence is a person who may or may not have legal status, but still has a right to be present in the United States.

A concrete example of this is a person with an H2-B visa. A person with an H2-B visa has permission to work in the United States in a particular position for a particular employer for a particular period of time. Let’s say that Fred entered the United States with an H-2B visa on January 1, 2013. He gets an I-94 card at the border granting him legal presence in the United States until June 1, 2013. The H-2B visa shows his legal status, which is that of H2B status. Let’s say that Fred works at a Marriott hotel as a hotel room attendant gets tired of it and stops working on March 1, 2013.

In this example Fred makes a status violation when he stops working at Marriott hotel on March 1, 2013.  However, after March 1, 2013 he is still legally present in the United States because his I-94 states he can be here until June 1, 2013. Because of the status violation, Fred can be put in removal proceedings (deportation), but he is still legally present.

If Fred then applied for and received deferred action under a different program than the DACA program, then he would not get deported or removed. We know that Fred is not in legal status because he was supposed to work at the Marriott, but maybe he is legally present even after his I-94 expires on June 1, 2013 because the government knows of his presence and has granted him deferred action.

A person receiving DACA would most likely never have had legal status or legal presence, but it is possible that a grant of Deferred Action under the DACA program has given a DACA recipient lawful presence in the United States without lawful status. Ultimately, the federal courts or immigration courts will have to decide this issue.

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