Division of Motorist Services By T.N. Prakash Motorist Services Programs Consultant Tax Collectors’ Spring Conference – Delray Beach Evidence of Lawful Presence & Real ID Act of 2005 & Real ID Act of 2005

What Does the Law Require for Eligibility for a DL or ID Card? Applicant meets all eligibility requirements to include: What Does the Law Require for Eligibility for a DL or ID Card? Applicant meets all eligibility requirements to include:  Knowledge of road signs and rules  Ability and skill to drive AND ABOVE ALL  That a person is here lawfully

What is being here lawfully?  It is not having a form  It is not having a certificate  It is not having a passport It is having either the right to live here or It is having either the right to live here or the permission to live here the permission to live here Who gives the permission? The Department of State Or The Department of Homeland Security

How Does One Come into the USA? Two step process: Department of State issues a VISA Department of Homeland Security Allows them to enter What is a VISA? It is simply a permission to board a flight and knock on the door – not permission to enter

What is this right or permission? If one is born in this country, the person has the birthright to live in this country What is this right or permission? If one is born in this country, the person has the birthright to live in this country Once a person has either of these, we confirm their eligibility for a license or an ID If one is not born here, then you must do one of two things:  Establish the right (4 ways for citizenship)  Seek permission to live here permanently or temporarily or temporarily

How do we verify what has been established? Through documents approved by one of the federal agencies which has approved their right, established their right, or approved them for stay Now we come to all the documents that are involved which help us to establish their eligibility The concept is more important than the specifics Regardless of the specific document/form, what helps us verify lawful presence?

Who Needs Lawful Presence ? Everybody Everybody Every person who can claim lawful presence in the USA is: Every person who can claim lawful presence in the USA is: A citizen A citizen A permanent resident (LPR/Immigrant)) A permanent resident (LPR/Immigrant)) A temporary resident (Non-immigrant) A temporary resident (Non-immigrant)

Citizens How do you establish citizenship?  You are born in the USA  You acquired citizenship  You naturalized as a US citizen  You derived citizenship from one parent Once you establish citizenship, you can get a US passport Without a document proving one of the above, you cannot get a US passport

Non-Citizens Immigrants and Non- Immigrants

Immigrants and Non-immigrants These are people who have made a long journey to come here There are many things common to both of them Let’s see what they are used to carrying – most of them ClassificationPassportVisaSponsorI-94OTD * Immigrants√√√√√ Non- immigrants √√√√√ *OTD: Other Travel Documents

Immigrants They have declared their intention to stay here permanently They applied and have been approved to stay here permanently Their sponsor was mostly either a relative or an organization for employment Relatives are classified as: 1) Immediate relatives 2) Other relatives They have all the privileges that citizens have as rights, except the right to vote Can any relative sponsor?

Immigrants (Contd.) Who can sponsor under relative category? Who are relatives Citizens Permanent PermanentResidents Immediate Relatives: Spouse Spouse Parents Parents Minor Children Minor Children Other Alien Preferences: Siblings Siblings Adult Children Adult Children Married son/daughter Married son/daughter NOT Allowed to File: Grandfather, Grandmother Grandfather, Grandmother Uncle, Aunt, Nephew, Niece, Uncle, Aunt, Nephew, Niece, In-laws, etc. In-laws, etc.√√ √ √** √ √**√√ √ (4) √ (4) √ (1) √ (1) √ (3) √ (3) XXX √ (2A) √ (2A)X X √ (2B) √ (2B)X XXX √√: Immediate relatives do not have to wait for Visa to be available X : Indicates not allowed to file **: Citizen must be 21 years or older to file for a parent

How Does One Become an LPR? It starts with a sponsor – a relative or an employer  A relative who is the petitioner must be an LPR or a USC or a USC who  An employer who is the petitioner has to be a local US employer  The person seeking LPR status is the beneficiary – self-filers

What is a Visa Preference? Two types of preferences: Family based preference (FBP) Employer based preference (EBP) When a family member sponsors for LPR status, it is FBP When employer sponsors, it is EBP

Who is covered in preferences? FBP: 1 st :Adult Children of USC 2A: Spouse & minor children of LPR 2B: Adult Children of LPR 3 rd : Married children of USC 4 th : Siblings of USC

Covered in Preferences (Contd) EBP: 1 st : Priority workers (high demand) 2 nd :Advanced degrees/exceptional ability 3rd:Skilled workers/Professionals 4 th : Certain Special Immigrants 5 th : Employment creators/Investors

What is a Priority Date? The date when a petition is filed When the I-130 is filed, the priority date is marked as the “received date” on the receipt – the I-797 All applications are processed in the order in which they are received Hence, priority dates indicate the dates as of which applications are in process When DHS states that they are now processing October 1, 2001, that means they have made decisions on all applications received prior to that date If my application was filed and received by them on October 1, 2006, then I have approximately another 5 years to wait before they get to the file All of this is available on the website:

Difference Between Pending I-130 and Approved I-130 A person with a I-130 pending 3 years can get a license, but a person approved cannot? Remember that a visa number must be available? Why? The approval simply indicates that the eligibility has been confirmed Visa number confirms that one can become a LPR – file an I-485 Therefore, an I-485 confirms that a visa number is available and will adjust status One can become a Lawful Permanent Resident

What is this 3-year Rule on pending applications? Not a rule, but a policy On average, most forms take 2-4 years to get action due to the backlog Generally, in 3 years, one can see some decisions coming through Some much shorter, and some longer DDL Laws state that, if you are in the pipeline, you can be considered lawful Hence, complying with Florida Statutes, pipeline is considered 3 years

Self-filing Immigrants – Who are they? Refugees: They are given refugee status in their homeland and brought in by Uncle Sam (passport with a refugee stamp) Asylees: People who are already here with/without inspection and are applying for asylum – when granted, they will be eligible for LRP status (DHS document, I-94, indicating application and A#, must have a photo document) Others: People who have suffered different kinds of hardship and are applying to stay in this country – EOIR 42B = “Withholding of Removal Proceedings” (multiple documents from the attorneys – refer to HQ) And then there are classes of people who do not have a sponsor

Cancellation of Removal (COR) Generally when an LPR or NI is ordered deported, the attorney files for a COR petition EOIR 42A for LPR EOIR 42B for NI Until adjudicated, LPR maintains status Until adjudicated, NI has no status – hence we request EAD

Parolee A “parolee” is not what the name conjures in our minds They can be dignitaries, ordinary folk, or out of detention 6 types of parolees They are all entitled to a license only for the duration of lawful stay or 1 year

Non-Immigrants They declared their intention to stay here temporarily They applied and were approved to come here and asked permission to come in They were allowed to come in for a temporary period Their sponsor was a relative, firm, or even self visiting for business, pleasure or something else

Lawful Presence – DHS VS DHSMV When a person’s application for a benefit is denied, DHS believes them to have no status. We do ….if they appealed on time Asylees and Refugees are not considered by DHS as LPR until adjusted. We do. A person pending a court hearing is not considered legal by DHS. We do. DHS does not consider a person accused of fraud as legal. We do until final adjudication is made.

Forms for Non-Immigrants This is the main focus of all our work….. Forms are innumerable and each form identifies a specific purpose or purposes Again, before you think of the form, the basic requirements are:  Passport/Visa  I-94 No one can enter the country through the front door without a passport No one can enter into the country through the port of entry without an I-94

What happens? People change their mind – they have a right to People change their status – they have the option to apply People can apply for an extension All of the above with the proper forms

How people remain lawfully in the US? They apply for a change of status to buy time. Then evidence is required for:  What is the status currently?  What is the change required? For example: Student to Temporary Worker (F1 to H1) Visitor to Student (B1 to F1) Visitor to Student (B1 to F1) Visitor to Temporary Worker (B1 to H1) Visitor to Temporary Worker (B1 to H1) To prove this, the applicant must present the receipt showing the request to change or extend stay That receipt is the I-797

General Process for Most Applicants for I-130/I-140/Citizenship Most people come in for studies After training, get an H1B After 3-4 years, file an I-140 for LPR status After being an LPR for 5 years, eligible for citizenship A person must be in this country for 5 years as a LPR before applying for citizenship

I-797 I-797 is used for many purposes I-797A – Action taken and sent to petitioner I-797B – this copy is sent to the attorney I-797C – is simply a receipt notice sent to beneficiary In essence, it is a Notice of Action taken by the applicant or the USCIS

I-797 (Contd.) The I-797 is a Notice of Action Every notice sent has the words that this does not give status nor imply anything It is simply a notification An approved I-130, for example, simply is a notice that the petition was approved It does not give status

Variations on the General Theme Let us how people try to get through: Customer comes in with a proof for change of status (I-539): It is 2 years old Should I accept it if the customer was adjusting from F-1 to the customer was adjusting from F-1 to LPR? LPR? if this person was wanting to extend stay by 6 months after entering the country by 6 months after entering the country as a B1B2? as a B1B2? What if this applicant came in on a K visa and wants to extend status?

Acceptable Documents Table The Acceptable Documents Table is complete and frequently updated It identifies each classification and the documents required Most questions are because someone has not looked at the table or got confused

GENERAL CONSIDERATIONS 1)Once a person goes out of status, they will not be able to adjust status in this country as an LPR – there are a few exceptions. 2)Customers do not generally know their own status since the lawyers do not keep them well informed. We need to ask the right questions. 3)Our attitude must always be how can I help you get a license/ID within the framework of the law. NOT how can I ask you for the one document you do not have so that I can refuse. 4)Every person without proper documentation is not a terrorist. They are desperate to improve their lives for themselves and their families. 5)Fraud is very difficult to prove. A mistake can appear as fraud. 6)Understand the process. Place the person at the right location in the process. Identify the status at that position. Issue the license….OR NOT.

Any Questions