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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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Division of motorist services
Division of Motorist Services

Evidence of Lawful Presence

& Real ID Act of 2005

2012- Tax Collectors’ Spring Conference – Delray Beach


T.N. Prakash

Motorist Services Programs Consultant

Division of motorist services
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


  • That 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 certificate

  • It is not having a passport

  • It is having either the right to live here or

  • 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
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

Division of motorist services
What is this right or permission?If one is born in this country, the personhas 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

How do we verify what has been established
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
Who Needs Lawful Presence ?

  • Everybody

  • Every person who can claim lawful presence in the USA is:

  • A citizen

  • A permanent resident (LPR/Immigrant))

  • A temporary resident (Non-immigrant)


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
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?

Immigrants contd who can sponsor under relative category
Immigrants (Contd.)Who can sponsor under relative category?

√√: 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
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

  • 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
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
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
Covered in Preferences (Contd)

  • EBP: 1st: Priority workers (high demand)

  • 2nd:Advanced degrees/exceptional

    • ability

      3rd:Skilled workers/Professionals

      4th: Certain Special Immigrants

      5th: Employment creators/Investors

What is a priority date
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: http://travel.state.gov/Visa

Difference between pending i 130 and approved i 130
Difference Between Pending I-130and 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 confirmsthat a visa number isavailable and will adjust status

One can become a Lawful Permanent Resident

What is this 3 year rule on pending applications
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
Self-filing Immigrants – Who are they?

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)

Cancellation of removal cor
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


  • 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
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
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
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
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 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


General process for most applicants for i 130 i 140 citizenship
General Process for Most Applicants forI-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
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


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?

Acceptable documents table
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.