Common Issues on CA Drivers Licenses for Immigrants

It is difficult to obtain a driver's license in CA if you are in CA illegally or can't prove legal status. It may be advantageous for immigrants who are undocumented to keep their foreign driver's licenses valid so they have i.d. and are less likely to get fined or arrested for driving without a license if ever pulled over by California Highway Patrol. California CHP officers typically ask for a valid CA driver's license for anyone who has been in CA for at least 30 days. This can create a dual intent problem for those even in the US legally but on visitor's visas. Visitors who are granted 6 month stays on their I-94s should not be obtaining a CA driver's license if they want to show that they are not actually living in the US but are just visiting. If the Customs and Border Protection agent finds a CA driver's license on a Boarder Crosser or a B-2 visa holder, CBP may deny entry because of this document which may prove the immigrant is living in California. It's a big catch 22.

Another common problem for those legally in the US but who are here on temporary visas or green cards is changing their name, reflecting the correct birth date on the driver's license, a marriage change of name, or proving their identity if the passport biographical page doesn't match the birth certificate. The CA DMV will not accept copies of birth certificates, marriage and divorce certificates, change of name certificates, and other such documents. You must prove the change with an original document. Further, those with conditional green cards who have filed to remove the condition and have an I-751 receipt that extends their permanent residency status, may not be able to obtain extended driver's licenses at some offices because CA DMV only extends green cards based on approved documents, not receipt notices. Ask for a supervisor if this happens to you; there is a big difference between I-751 receipts and receipts for Nonimmigrant visa extensions.

Further, in CA, if your driver's license is expiring in the next 30 days, you can't get an extension unless you have an approved immigrant visa or temporary nonimmigrant visa petition proving you have valid immigration status for an additional period of time. If this new period of time is less than 5 years, your driver's license will only be extended for the term of your visa. Always consult a competent immigration attorney about your situation to determine what options you may have and to determine if any of these requirements have changed.

Be Careful: Permanent Bar Now Retroactive!

In Carrillo de Palacios, the Ninth circuit held that any unlawful presence period before 4/1/1997 can be used to trigger the permanent bar even if the illegal or attempted illegal re-entry happened only months after 4/1/97. The case is currently on appeal because it allows for a new law to be applied retroactively to unlawful presence before the new law (IIRIRA) took effect in 4/1/1997 when the permanent bar and the unlawful presence bars (3 & 10 year bars) were created. The applicant in this case had 245(i) adjustment eligibility if not for the permanent bar and was denied her opportunity to apply for a green card.

Determining Case Status on Waivers filed outside the US

Determining case status is one of the most frustrating parts of the current waiver process outside of the US. CIS offices not only differ on processing times for waiver submissions, but there is usually no way of finding updated information on how long a case is taking. The first place I always recommend is reviewing the consulate's website. Access the US Department of State's website for a list of consulates. Some of these consulates have links to the CIS office assigned to the consulate. Certain CIS offices post processing times in terms of the average monthly processing times. Others, such as the Athens office, allows applicants to track their case by the case number.

CIS Headquarters in the US has received complaints about this inability to track up to date processing information for many overseas offices. As of June 2011, CIS reports that they are trying to implement a "case status online" system for international cases much like that found for cases filed in the US and accessible through www.uscis.gov, but this international system is many months away. Always consult your immigration attorney to determine if there are more recent, available methods for the particular CIS office where your file is located to find out updated processing times.

Direct Filings of Marriage Green Card Cases at Consulates Changing

The One Step Filing Procedure Is Now Rare.

As of August 25, 2011, US citizens residing in a foreign country that does not have a US CIS office in that country, are no longer allowed to directly file their marriage-based immigrant visa cases with the consulate in that country. They have to file the case with US CIS lockbox in the United States. In only cases of rare emergency (such as medical emergencies or where the personal safety of the petitioner or beneficiary is at risk), will CIS authorize the Department of State (consulate abroad) to accept a direct filing when there is no CIS office in that country.

This will not be a popular decision as it eliminates the advantage to direct filing which was cutting out the long CIS processing time that averages 6 months for the file to be approved by CIS in the US), plus the time NVC takes to assemble and request more documents and set up the consulate interview. Now, it will take longer for CIS to approve the case, reroute it to the National Visa Center, then reroute it again to the consulate abroad for the immigrant's interview based on the marriage. Only those US citizens living in a foreign country that has a CIS office within that country will be able to skip the US CIS & NVC processing.

Fast Track Waiver Program Stays in Mexico

The US Consulate in Ciudad Juarez, Mexico receives 20,000 waiver filings (for unlawful presence, misrepresentation, prostitution, and criminal grounds) a year, with two full time workers assigned t the waivers. They have the only waiver system in the wqorld that is two-tracked. A case can be "instantly approved" within 3 weeks, on average, if the officer believes that the case is strong enough or there are no complications with arrest records, or other unresolved issues that need more attention. The cases that are not in these instantly approved batch, head to the backlog, which has taken as long as 16 months for a decision, an incredibly long time for an immigrant to wait abroad for a decision. CIS recently announced that CDJ CIS's fast track program is being considered for all waiver submissions when CIS brings all waiver filings to a lockbox set in the U.S. scheduled to be set up for next year. Right now, no other CIS office outside the US has this fast track program and CIS is making no plans to add the fast track to any of those offices as none have the volume of cases that CDJ has.