Division of Motorist Services. Evidence of Lawful Presence & Real ID Act of 2005. 2012- Tax Collectors’ Spring Conference – Delray Beach. By T.N. Prakash Motorist Services Programs Consultant.
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Evidence of Lawful Presence
& Real ID Act of 2005
2012- Tax Collectors’ Spring Conference – Delray Beach
Motorist Services Programs Consultant
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
Once a person has either of these, we confirm their eligibility for a license or an ID
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?
How do you establish citizenship?
Once you establish citizenship, you can
get a US passport
Without a document proving one of the above, you cannot get a US passport
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
*OTD: Other Travel Documents
They have declared their intention to stay here permanently
They applied and have been approved to stay here permanently
They have all the privileges that citizens have as
rights, except the right to vote
Their sponsor was mostly either a relative or an organization for employment
Relatives are classified as: 1) Immediate relatives 2) Other relatives
Can any relative sponsor?
√√: 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
It starts with a sponsor – a relative or an employer
or a USC
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
4th: Certain Special Immigrants
5th: Employment creators/Investors
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: http://travel.state.gov/Visa
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 confirmsthat a visa number isavailable and will adjust status
One can become a Lawful Permanent Resident
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
And then there are classes of people who do not have a sponsor
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)
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
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.
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:
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
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
They apply for a change of status to buy time. Then evidence is required for:
For example: Student to Temporary Worker (F1 to H1)
Visitor to Student (B1 to F1)
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
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 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
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
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
if this person was wanting to extend stay
by 6 months after entering the country
as a B1B2?
What if this applicant came in on a K visa and wants to extend status?
The Acceptable Documents Table is complete and frequently updated
It identifies each classification and the
Most questions are because someone has not looked at the table or got confused
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.