Copland and Brenner

Table of Contents

1. NYS License Policy Changes (Again)
2. DV-2009 reminder
3. In Brief: Recent Developments

1. NYS License Policy Changes (Again)

   On June 7, 2007, New York State’s highest court agreed with a Department of Motor Vehicles (“DMV”) policy that an applicant for a driver license or state ID must include his or her Social Security number (“SSN”), or proof of ineligibility for a number, from the Social Security Administration (“SSA”). Under the court ruling, along with proof of ineligibility from the SSA, an applicant would also have to provide the underlying documents from the Department of Homeland Security which establish ineligibility for a SSN. On September 21, however, Governor Eliot Spitzer and the DMV Commissioner threw the Court of Appeals decision into question by announcing a change in policy such that even illegal aliens would be eligible for New York State driver licenses. A valid passport would be required, but not a visa or an SSA letter of ineligibility.

   According to the Spitzer Administration, the change would allow the DMV to focus on its mission to ensure the fitness of drivers and verify their identity. Law enforcement efforts would be a winner in the view of the Spitzer Administration, because the true identity of an applicant would be established under stricter and more secure requirements that prevent the use of fraudulent documents to obtain a driver license or state identification.

   In reporting the Spitzer announcement, The New York Times noted (September 22, 2007) that behind the proposed shift was “a study showing that unlicensed drivers were almost five times more likely to be in fatal crashes than people with valid driver’s licenses. The State Department of Insurance estimates that the new rules will save New York drivers $120 million each year by reducing premium costs associated with uninsured motorists by 34 percent.” That article and others have pointed out that the Spitzer policy is not new, and would actually return New York State’s practice to that of about four years ago, when it became difficult or impossible for illegal immigrants to obtain a state license or ID under the administration of Governor George Pataki - likewise without legislative approval. However, the article also noted that “[a]ll but eight states now require drivers to prove legal status to obtain driver’s licenses – Hawaii, Maine, Maryland, Michigan, New Mexico, Oregon, Utah and Washington,” and that they “have come under pressure to add such a requirement.” Spitzer’s plan, therefore, seemed to buck the trend.

   The outcry announcement was immediate, loud, and sustained. The Times Union of Albany reported on September 27 that many upstate New York county clerks, including those in Rensselaer and Columbia counties, said they would protest, or even refuse to implement, the changed policy. Rensselaer County Clerk Frank Merola reportedly “planned to turn away those who can’t prove they are citizens or who have a visa to be in the U.S.,” and would “send those without a visa or proof of citizenship across the Hudson River to the state Department of Motor Vehicles office in Albany, once the new policy is in full effect in May.” A Spitzer official indicated that consequences for refusing to abide by the Administration’s policy would be “dealt with at that point.” More recently, Erie and Niagara county clerks reportedly indicated they would alert police and immigration officials when illegal aliens applied for licenses.

   Commentators of all stripes had something to offer. With some oddly juxtaposed notions, an Albany Times Union columnist wrote on September 25 that there “are an estimated 500,000 illegal immigrants in the state, many of them driving without licenses, putting other drivers on the roads at risk,” and cited the DMV study indicating such drivers are five times more likely to have an accident. He correctly noted that “Spitzer’s reasoning is that by allowing illegal aliens to get licenses, we get them in the system and we can keep track of them better,” but wrote that this “[s]ounds like New Age logic to me.” By the columnist's assessment, "[1]n one odd stroke of a policy change, Governor Spitzer has considerably cheapened the value of your driver's license. No longer will applicants have to prove that they have a Social Security number, or even prove that they are eligible for one. All that license will be good for now is a permit to drive."

   One might respond to such a critique by saying, "precisely." A driver license is a permit to drive. Governor Spitzer argued, and we agreed last month, that the DMV is not, and should not become, a de facto enforcer of U.S. immigration laws. Instead, that task should be handled by federal authorities properly charged with applicable responsibilities. However, since the proposed change involved the hot-button issue of illegal immigrants among us, a parade of horribles was trotted out with opposition as widespread as it was uninformed.

   Therefore, the pendulum is broadly seen as swinging against the Spitzer policy despite initial signs of support. Early on, many agreed that document verification technology would be significantly improved under the policy. The Spitzer Administration announced that Richard A. Clark, former White House antiterrorism advisor, and William J. Bratton, former New York City Police Commissioner, endorsed it. A New York Times editorial defended it. But a Sienna poll indicated 72 per cent of New Yorkers opposed the plan. State Republicans threatened that a lawsuit would be filed, in part on grounds that the policy change could not be made by administrative fiat, but only by legislative processes. On October 21 the state Senate voted, 39 - 19, in favor of legislation to overturn the policy. And Lou Dobbs, CNN's in-house anti-immigrant crusader not known for mincing his words, engaged in what The Times referred to as "relentless mockery" of the Spitzer plan. Spitzer, famously, did not budge - or showed no sign of it, at least in public.

   Behind the scenes, though, there was movement. According to an October 31 New York Times article, a top aide to DHS Secretary Michael Chertoff advised the governor's deputy secretary for public safety of DHS concerns that the Spitzer policy would "undermine a federal initiative to roll out a highly secure, nationally recognized license." As a result, the "governor and his aides felt they had few options." The Spitzer proposal subsequently morphed into a new plan - for not one, not two, but three varieties of New York State licenses.

   On October 27, Governor Spitzer and Secretary Chertoff announced the revised plan, characterized as an "agreement" with DHS. According to the Governor's press release that day, "New York will offer three separate and secure licenses all used for different purposes - an 'Enhanced Drivers License' for crossing the New York-Canadian border, a federally-approved license to fly on planes and a New York State license for driving and identification purposes."

   The enhanced license would be a passport substitute for crossing international borders under the Western Hemisphere Travel Initiative; only U.S. citizens would be eligible. The federally-approved license would satisfy REAL ID statutory requirements where a state license must be presented for "official purposes" such as boarding a plane or entering federal facilities such as courthouses, Veterans Administration hospitals and agency buildings. Only U.S. citizens and lawfully present non-citizens would be eligible.

   The release goes on to say that the NYS "license will continue to be available to both undocumented immigrants and lawful residents who simply choose not to purchase one of the federally-approved licenses, either because they already have a passport (35% of New Yorkers do), don't want to pay an extra fee for one of these new federal licenses, or cannot meet the extra requirements necessary to get them. The state-approved license will simply say 'not for U.S. government purposes.'" Despite official claims that a basic license is not the equivalent of a "scarlet letter" as to immigration status, the lack of utility for such a license suggests that few lawfully present individuals would seek one. And despite the "agreement" with DHS, Secretary Chertoff made it clear during the press conference that he does not support granting licenses to illegal aliens.

   As a result of the policy shifts over the past six weeks, information on the New York State DMV web site regarding driver license eligibility policies may have seen more changes than, shall we say, a maternity ward. And Governor Spitzer's recent three-pronged license proposition does not necessarily mean the debate is over. His nemesis, New York Senator Joe Bruno (R-Brunswick), appeared on Lou Dobbs' show, befittingly on Halloween, where he criticized the "three-tiered" plan and argued that Governor Spitzer had disenfranchised New York's 212 legislators. There are still plenty of opponents regarding the proposed availability of a basic license to undocumented aliens.

   Part of the problem may be that no approach can realistically satisfy New York's statutory language given current limitations on SSN issuance. The New York State law involved is Section 502 of the Vehicle and Traffic Law, which states that "[t]he applicant shall furnish such proof of identity, age, and fitness as may be required by the commissioner." In addition, it provides that "the commissioner also shall require that the applicant provide his or her social security number " (emphasis added), but does not indicate what to do if the applicant does not have a SSN. This suggests that the September and October 2007 incarnations of the proposed Spitzer policies, as well as those previously in existence, are necessarily workarounds involving a statute that does not take into account SSA restrictions.

   Since SSA regulations preclude issuance of a SSN to a noncitizen lacking work permission, the fact is that hundreds of thousands of lawfully present aliens cannot obtain one. Examples include the H-4 spouse or child of an H-1B worker, the L-2 spouse or child of an L-1A intracompany transferee, and the B-2 non-spouse partner of an E, H, or L nonimmigrant. There are many others.

   In any event, as of November 1, 2007, the DMV site states that person who drives in NYS is required to hold a NYS driver license if he or she is a state resident. A NYS resident is a "domiciliary, that is, one who lives in this state with the intention of making it a fixed and permanent abode. It shall be presumptive evidence that a person who maintains a place of abode in this state for a period of at least ninety days is a resident of this state." In addition, " You must show a Social Security Card . If you are not eligible for a Social Security Card, you must provide a letter or form SSA-L676 from the US Social Security Administration (SSA) that states that you are not eligible. The SSA Letter or form must have been issued no more than 30 days before the date of your application. You must also show the U.S. Citizenship and Immigration Services (USCIS) documents that the SSA used to determine that you are not eligible for a Social Security Card." More information may be found online at http://www.nydmv.state.ny.us/license.htm#driversfromothernations (emphasis in original). The more things change, the more they stay the same. Stay tuned.

2. DV-2009 reminder

   We remind readers that entries for the Diversity Visa Lottery Program for 2009 (“DV-2009”) must be submitted electronically no later than noon (Eastern Standard Time) on Sunday, December 2, 2007. The Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2009 must be accessed online during the current registration period, at www.dvlottery.state.gov . Official Department of State instructions for DV-2009 are available online in portable document format (pdf) at http://www.travel.state.gov/pdf/2009DVInstructions.pdf. Applicants are strongly encouraged by the DOS not to wait until the last week of the registration period to enter, as heavy demand may cause website delays, and no entries will be accepted after noon EST on December 2, 2007.

3. In Brief: Recent DevelopmentsI-9 Update: On October 31, the American Immigration Lawyers Association informed members that a new I-9 form is “imminent.” According to AILA, “DHS has decided to move forward with a new I-9 form and employer handbook at this time, perhaps as early as the week of November 5.” The form will still be based upon 1997 – 1998 regulations, with a new regulation – and a newer I-9 form – to follow in 2008.