Division of Motorist Division of Motorist ServicesServices

By

T.N. Prakash

Motorist Services Programs Consultant

2012- Tax Collectors’ Spring 2012- Tax Collectors’ Spring Conference – Delray BeachConference – Delray Beach

Evidence of Lawful Presence Evidence of Lawful Presence

& Real ID Act of 2005& Real ID Act of 2005

What Does the Law Require forWhat Does the Law Require for Eligibility for a DL or ID Card? Eligibility for a DL or ID Card?

Applicant meets all eligibility Applicant meets all eligibility requirementsrequirements to include: to include:

Knowledge of road signs and rulesKnowledge of road signs and rules

Ability and skill to driveAbility and skill to drive

AND ABOVE ALLAND ABOVE ALL That a person is here lawfullyThat a person is here lawfully

What is being here lawfully?What is being here lawfully?

It is not having a form It is not having a form It is not having a certificateIt is not having a certificate It is not having a passportIt is not having a passport

It is having either the right to live It is having either the right to live here or here or

the permission to live herethe permission to live hereWho gives the permission?Who gives the permission?

The Department of State The Department of State

OrOr

The Department of Homeland The Department of Homeland SecuritySecurity

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 What is this right or permission?permission?

If one is born in this country, the If one is born in this country, the personpersonhas the birthright to live in this has the birthright to live in this countrycountry

Once a person has either of these, we Once a person has either of these, we confirm their eligibility for a license or confirm their eligibility for a license or an IDan ID

If one is not born here, then you If one is not born here, then you must do one of two things:must do one of two things:

Establish the right (4 ways for Establish the right (4 ways for citizenship)citizenship) Seek permission to live here Seek permission to live here permanently permanently or temporarilyor temporarily

How do we verify what has been How do we verify what has been established?established?

Through documents approved by one of the Through documents approved by one of the federal agencies which has approved their federal agencies which has approved their right, established their right, or approved right, established their right, or approved them for staythem for stay

Now we come to all the documents that are Now we come to all the documents that are involved which help us to establish their involved which help us to establish their eligibilityeligibility

The concept is more important than the The concept is more important than the specificsspecifics

Regardless of the specific document/form, Regardless of the specific document/form, what helps us verify lawful presence?what helps us verify lawful presence?

Who Needs Lawful Presence ?Who Needs Lawful Presence ?

EverybodyEverybody Every person who can claim lawful Every person who can claim lawful

presence in the USA is:presence in the USA is:

A citizenA citizen A permanent resident A permanent resident

(LPR/Immigrant)) (LPR/Immigrant)) A temporary resident (Non-A temporary resident (Non-

immigrant)immigrant)

CitizensCitizens

How do you establish citizenship? How do you establish citizenship?

You are born in the USAYou are born in the USA You acquired citizenshipYou acquired citizenship You naturalized as a US citizenYou naturalized as a US citizen You derived citizenship from one parentYou derived citizenship from one parent

Once you establish citizenship, you can Once you establish citizenship, you can get a US passportget a US passport

Without a document proving one of the above, Without a document proving one of the above, you cannot get a US passportyou cannot get a US passport

Non-CitizensNon-Citizens

Immigrants and Non-Immigrants and Non-ImmigrantsImmigrants

Immigrants and Non-immigrantsImmigrants and Non-immigrants

These are people who have made a long These are people who have made a long journey to come herejourney to come here

There are many things common to both of There are many things common to both of themthem

Let’s see what they are used to carrying – Let’s see what they are used to carrying – most of themmost of them

Classification Passport

Visa Sponsor

I-94 OTD *

Immigrants √ √ √ √ √

Non-immigrants

√ √ √ √ √

*OTD: Other Travel Documents

ImmigrantsImmigrants

They have declared their intention to stay They have declared their intention to stay here permanentlyhere permanently

They applied and have been approved to They applied and have been approved to stay here permanentlystay here permanently

Their sponsor was mostly either a relative Their sponsor was mostly either a relative or an organization for employmentor an organization for employment

Relatives are classified as: 1) Immediate Relatives are classified as: 1) Immediate relatives 2) Other relativesrelatives 2) Other relatives

They have all the privileges that citizens have as They have all the privileges that citizens have as rights, except the right to voterights, except the right to vote

Can any relative sponsor?Can any relative sponsor?

Immigrants (Contd.)Immigrants (Contd.)

Who can sponsor under relative Who can sponsor under relative category?category?

Who are relativesWho are relatives CitizensCitizens Permanent Permanent

ResidentsResidents

Immediate Relatives:Immediate Relatives:

SpouseSpouse

ParentsParents

Minor ChildrenMinor Children

Other Alien Preferences:Other Alien Preferences:

SiblingsSiblings

Adult ChildrenAdult Children

Married son/daughterMarried son/daughter

NOT Allowed to File:NOT Allowed to File:

Grandfather, GrandmotherGrandfather, Grandmother

Uncle, Aunt, Nephew, Niece, Uncle, Aunt, Nephew, Niece,

In-laws, etc.In-laws, etc.

√√√√

√ √ √√****

√√√√

√ √ (4)(4)

√ √ (1) (1)

√ √ (3)(3)

XX

XX

XX

√ √ (2A)(2A)

XX

√ √ (2A)(2A)

XX

√ √ (2B)(2B)

XX

XX

XX

XX

√√: Immediate relatives do not have to wait for Visa to be availableX : Indicates not allowed to file**: Citizen must be 21 years or older to file for a parent

How Does One Become an LPR?How Does One Become an LPR?

It starts with a sponsor – a relative or an employerIt starts with a sponsor – a relative or an employer

A relative who is the petitioner must be an LPR A relative who is the petitioner must be an LPR or a USC or a USC

An employer whowho 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: 1st:Adult Children of USC 2A: Spouse & minor children

of LPR 2B: Adult Children of LPR 3rd: Married children of USC 4th: Siblings of USC

Covered in Preferences (Contd)

EBP: 1st: Priority workers (high demand) 2nd:Advanced degrees/exceptional

ability3rd:Skilled workers/Professionals4th: Certain Special Immigrants5th: Employment creators/Investors

What is a Priority Date?What is a Priority Date?

The date when a petition is filedThe date when a petition is filed

When the When the I-130I-130 is filed, the priority date is marked as the is filed, the priority date is marked as the “received date” on the receipt – the I-797“received date” on the receipt – the I-797

All applications are processed in the order in which they are All applications are processed in the order in which they are receivedreceived

Hence, priority dates indicate the dates as of which applications Hence, priority dates indicate the dates as of which applications are in processare in process

When DHS states that they are now processing October 1, 2001, When DHS states that they are now processing October 1, 2001, that means they have made decisions on all applications received that means they have made decisions on all applications received prior to that dateprior to that date

If my application was filed and received by them on October 1, If my application was filed and received by them on October 1, 2006, then I have approximately another 5 years to wait before 2006, then I have approximately another 5 years to wait before they get to the filethey get to the file

All of this is available on the website: http://travel.state.gov/VisaAll of this is available on the website: http://travel.state.gov/Visa

Difference Between Pending I-130Difference Between Pending I-130and and ApprovedApproved I-130 I-130

A person with a A person with a I-130 I-130 pending 3 years can get pending 3 years can get a license, but a person approved cannot?a license, but a person approved cannot?

Remember that a visa number must be Remember that a visa number must be available? Why?available? Why?

The approval simply indicates that the eligibility The approval simply indicates that the eligibility has been confirmedhas been confirmed

Visa number confirms that one can become a Visa number confirms that one can become a LPR – file an LPR – file an I-485I-485

ThereforeTherefore,, an an I-485 I-485 confirmsconfirms that a visa that a visa number isnumber is available and will adjust statusavailable and will adjust status

One can become a Lawful Permanent One can become a Lawful Permanent ResidentResident

What is this 3-year Rule on What is this 3-year Rule on pending applications?pending applications?

Not a rule, but a policyNot a rule, but a policy

On average, most forms take 2-4 years to On average, most forms take 2-4 years to get action due to the backlogget action due to the backlog

Generally, in 3 years, one can see some Generally, in 3 years, one can see some decisions coming throughdecisions coming through

Some much shorter, and some longerSome much shorter, and some longer

DDL Laws state that, if you are in the DDL Laws state that, if you are in the pipeline, you can be considered lawfulpipeline, you can be considered lawful

Hence, complying with Florida Statutes, Hence, complying with Florida Statutes, pipeline is considered 3 yearspipeline is considered 3 years

Self-filing Immigrants – Self-filing Immigrants – Who are they?Who are they?

Refugees: They are given refugee status in their Refugees: They are given refugee status in their homeland and brought in by Uncle Sam homeland and brought in by Uncle Sam (passport with a refugee stamp)(passport with a refugee stamp)

Asylees: People who are already here Asylees: People who are already here with/without inspection and are applying with/without inspection and are applying for asylum – when granted, they will be for asylum – when granted, they will be eligible for LRP status (DHS document, eligible for LRP status (DHS document, I-I-9494, indicating application and A#, must , indicating application and A#, must have a photo document)have a photo document)

Others: People who have suffered different Others: People who have suffered different kinds of hardship and are applying to kinds of hardship and are applying to stay in this country – EOIR 42B = stay in this country – EOIR 42B = “Withholding of Removal Proceedings” “Withholding of Removal Proceedings” (multiple documents from the attorneys (multiple documents from the attorneys – refer to HQ)– refer to HQ)

And then there are classes of people who And then there are classes of people who do not have a sponsordo 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-ImmigrantsNon-Immigrants

They declared their intention to stay here They declared their intention to stay here temporarilytemporarily

They applied and were approved to come They applied and were approved to come here here and asked permission to come inand asked permission to come inThey were allowed to come in for a They were allowed to come in for a temporary periodtemporary period

Their sponsor was a relative, firm, or even Their sponsor was a relative, firm, or even self visiting for business, pleasure or self visiting for business, pleasure or something elsesomething else

Lawful Presence – DHS VS Lawful Presence – DHS VS DHSMVDHSMV

When a person’s application for a benefit is When a person’s application for a benefit is denied, DHS believes them to have no status.denied, DHS believes them to have no status.We do ….if they appealed on timeWe do ….if they appealed on time

Asylees and Refugees are not considered by DHS Asylees and Refugees are not considered by DHS as LPR until adjusted. We do.as LPR until adjusted. We do.

A person pending a court hearing is not considered A person pending a court hearing is not considered legal by DHS. We do.legal by DHS. We do.

DHS does not consider a person accused of fraud DHS does not consider a person accused of fraud as legal.as legal.We do until final adjudication is made.We do until final adjudication is made.

Forms for Non-ImmigrantsForms for Non-Immigrants

This is the main focus of all our work…..This is the main focus of all our work…..

Forms are innumerable and each form Forms are innumerable and each form identifies a specific purpose or purposesidentifies a specific purpose or purposes

Again, before you think of the form, the Again, before you think of the form, the basic requirements are:basic requirements are:

Passport/VisaPassport/Visa I-94I-94

No one can enter the country through the No one can enter the country through the front door without a passportfront door without a passport

No one can enter into the country through No one can enter into the country through the port of entry without an the port of entry without an I-94I-94

What happens?What happens?

People change their mind – they have People change their mind – they have a right toa right to

People change their status – they People change their status – they have the option to applyhave the option to apply

People can apply for an extensionPeople can apply for an extension

All of the above with the proper All of the above with the proper formsforms

How people remain lawfully in the US?How people remain lawfully in the US?

They apply for a change of status to buy time. Then They apply for a change of status to buy time. Then evidence is required for:evidence is required for:

What is the status currently?What is the status currently? What is the change required?What is the change required?

For example: Student to Temporary Worker (F1 to For example: Student to Temporary Worker (F1 to H1)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 To prove this, the applicant must present the receipt showing the request to change or extend stayshowing the request to change or extend stay

That receipt is theThat receipt is theI-797I-797

General Process for Most General Process for Most Applicants forApplicants for

I-130I-130//I-140I-140/Citizenship/CitizenshipMost people come in for studiesMost people come in for studies

After training, get an H1BAfter training, get an H1B

After 3-4 After 3-4 yearsyears, file an , file an I-140I-140 for LPR for LPR statusstatus

After being an LPR for 5 years, After being an LPR for 5 years, eligible for citizenshipeligible for citizenship

A person must be in this country for 5 A person must be in this country for 5 years as a LPR before applying for years as a LPR before applying for citizenshipcitizenship

I-797I-797

I-797 I-797 is used for many purposesis used for many purposes

I-797AI-797A – Action taken and sent to petitioner – Action taken and sent to petitioner

I-797BI-797B – this copy is sent to the attorney – this copy is sent to the attorney

I-797C I-797C – is simply a receipt notice sent to – is simply a receipt notice sent to beneficiarybeneficiary

In essence, it is a Notice of Action taken by In essence, it is a Notice of Action taken by

thetheapplicant or the USCISapplicant or the USCIS

I-797I-797 (Contd.)(Contd.)

The The I-797I-797 is a Notice of Action is a Notice of Action

Every notice sent has the words that this Every notice sent has the words that this does not give status nor imply anythingdoes not give status nor imply anything

It is simply a notificationIt is simply a notification

An approved An approved I-130I-130, for example, simply , for example, simply is a notice that the petition was is a notice that the petition was approvedapproved

It does not give statusIt does not give status

VariationsVariations on the General Theme on the General Theme

Let us how people try to get through:Let us how people try to get through:

Customer comes in with a proof for change of Customer comes in with a proof for change of status (I-539):status (I-539):

It is 2 years oldIt is 2 years old

Should I accept it ifShould I accept it if

the customer was adjusting from F-1 tothe customer was adjusting from F-1 to LPR?LPR?

if this person was wanting to extend stayif 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 What if this applicant came in on a K visa and wants to extend status?and wants to extend status?

Acceptable Documents TableAcceptable Documents Table

The Acceptable Documents Table is The Acceptable Documents Table is complete and frequently updatedcomplete and frequently updated

It identifies each classification and the It identifies each classification and the

documents requireddocuments required

Most questions are because someone Most questions are because someone has not looked at the table or got has not looked at the table or got confusedconfused

GENERALGENERAL CONSIDERATIONSCONSIDERATIONS

1)1) Once a person goes out of status, they will not be able to adjust status in 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.this country as an LPR – there are a few exceptions.

2)2) Customers do not generally know their own status since Customers do not generally know their own status since the lawyers do not keep them well informed. We need to the lawyers do not keep them well informed. We need to ask the right questions.ask the right questions.

3)3) Our attitude must always be how can I help you get a Our attitude must always be how can I help you get a license/ID within the framework of the law. NOT how license/ID within the framework of the law. NOT how can I ask you for the one document you do not have so can I ask you for the one document you do not have so that I can refuse.that I can refuse.

4)4) Every person without proper documentation is not a Every person without proper documentation is not a terrorist. They are desperate to improve their lives for terrorist. They are desperate to improve their lives for themselves and their families.themselves and their families.

5)5) Fraud is very difficult to prove. A mistake can appear Fraud is very difficult to prove. A mistake can appear as fraud.as fraud.

6)6) Understand the process. Place the person at the right Understand the process. Place the person at the right location in the process. Identify the status at that location in the process. Identify the status at that position. Issue the license….OR NOT.position. Issue the license….OR NOT.

Any Questions