Mark A Ivener, A Law Corporation

USCIS Ombudsman Hosts Teleconference on DMV Benefits for Certain Nonimmigrant Workers

On February 25, 2016, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman hosted a public teleconference on issues related to Department of Motor Vehicles (DMV) benefits for certain nonimmigrant workers, including H and L nonimmigrants. Individuals whose employers timely file for extension of nonimmigrant status receive an automatic 240-day extension of work authorization while the petition remains unadjudicated. Representatives from the Department of Homeland Security (DHS), USCIS, the California DMV, and a private immigration attorney responded to questions posed by the Ombudsman and the public. The discussion focused on the impact of the REAL ID Act on how state DMVs treat individuals subject to the 240-day rule. 

During the call, the Ombudsman noted that although federal regulations provide for a 240-day extension of work authorization after a temporary worker’s status expires if the worker has a pending petition to extend that status, whether those workers can obtain and maintain a driver’s license during that time remains an issue. The REAL ID Act requires state driver’s licenses to conform to certain federal standards. The Act also requires that states verify an individual’s immigration status before issuing a REAL ID-compliant identification card, including a driver’s license. The lack of guidance on how state DMVs should handle driver’s licenses for temporary foreign workers with pending extension of stay petitions “has led to a patchwork of state responses,” USCIS noted. 

The DHS Office of Policy said the REAL ID Act complicates state interpretation of the 240-day rule because it links driver’s licenses to whether an individual has lawful immigration status, a distinct legal term that is different from lawful presence. The 240-day work authorization extension provides for lawful presence, but not lawful status. There have been attempts in the past to amend the REAL ID Act to address this and other related issues, but these efforts were unsuccessful. As a result, several categories of immigrants—not just temporary workers—”are disadvantaged by the statute’s requirement that licenses be tied to lawful status rather than to lawful presence,” USCIS said. 

One commenter discussed the impact on employers and nonimmigrant workers. Workers on a 240-day work authorization extension are provided only with a Form I-797C, the receipt for the filed extension-of-stay petition. There has been little guidance on how state DMVs should treat that document. The language on the I-797C makes it even more difficult to obtain DMV benefits because it explicitly states that the form does not grant any immigration status or benefit. Many states rely on this language to deny a license to immigrant workers on the 240-day extension. The struggle for employers is that the 240-day rule becomes less useful where the worker cannot drive to get to work, she said. Payment of the premium processing fee for the extension-of-stay petition guarantees adjudication of the petition within an expedited time frame and could alleviate the problems associated with the gap in status. However, not all employers can afford 

the additional fee, she noted, and it is not always an option, particularly where its only purpose would be to allow the worker to obtain a driver’s license. 

Relying on surveys, the commenter explained that some states that comply with REAL ID or are moving toward compliance have taken a hybrid approach. In those states, immigrants whose status has not expired can obtain a REAL ID-compliant license, while those without lawful status—but perhaps who are lawfully present—get a license that is not compliant with the law. A few states offer limited driver’s licenses or “driver privilege cards” for undocumented immigrants. Foreign workers in the 240-day extension window could request one of those licenses, but they would have to reapply for a regular driver’s license once their extension-of-stay petitions are approved. Some states that are not compliant with the REAL ID Act accept the I-797C as a document establishing lawful presence, as long as the document can be verified in SAVE. 

A representative of USCIS’s Systematic Alien Verification for Entitlements (SAVE) system explained that the agency issued guidance on this issue to state DMVs in 2014. That guidance “essentially punted to the states on their treatment of the 240-day extension,” USCIS said. SAVE only provides information on an individual’s immigration status—it does not indicate whether a state-level benefit should be granted. In that regard, USCIS said, “the states have to look at their own rules and regulations for how to treat the provision of state benefits that are based on immigration status.” 

The Ombudsman concluded the call by saying that the Ombudsman’s Office is aware of and is closely monitoring longer USCIS processing times for nonimmigrant worker adjudications and the resulting backlogs.

See also the USCIS statement is at

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.