Saturday, September 15, 2012

Terms of "Unlawful Status" and "Unlawful Presence" and "Illegal Alien" and DACA DREAMer Driver License

  • Under the circumstances of lack of guidance from immigration law community, there has been developing a growing confusion among state governments, particularly Republican governors, as to the legal definition of "Deferred Action" and the distinction between unlawful status and unlawful presence or stay of an alien under the federal immigration law. The Arizona governor has issued an executive order to the effect that state driver license will not be issued to DACA DREAMers for the "alleged" reasons that the state driver licence law does not permit issuance of driver license to an alien who is in "unlawful status" or "unlawful presence." Apparently to follow the suite of the Arizona Governor action, on August 17, 2012, the Governor of Nebraska issued his policy statement that since DACA DREAMers will remain "illegal aliens," the State of Nebraska will not issue driver liecense to DACA DREAMers. On August 16, 2012, the Governor of Texas also released a policy statement for the State of Texas that the federal law does not permit government benefits (including driver license) to most "unlawfully present" aliens, and pursuant to the federal law and texas law, the State of Texas will handle the state government benefit issues per the Texas statute and federal law. This reporter earlier expressed his concerns with potential domino effect of the Arizona Governor's action on other states (particularly Republican).
  • Federal immigration law is considered as complicated as the IRS tax codes. This reporter will try to briefly summarize and clarify these issues. Firstly, what is "illegal alien?" The term "illegal alien" is not a legal term but layman term probably covering aliens in unlawful status or unlawful presence in the country. Secondly, the term unlawful "status" means under the federal immigrant law that the period of admission to stay in the United States by the DHS authorities has expired or violated. Does it mean that all the aliens who's admitted period of stay expired are unlawful in the United State under the federal law? Noooops! Because under the federal immigration law, the DHS secretary has an authority to grant a permission of lawful stay or presence for certain expired nonimmigrants "pending" certain "legal" proceedings. In other words, their stay in the United Status will be conditioned upon "pending legal proceeding." This permission is called "lawful presence." Most of I-485 applicants whose nonimmigrant status expired are keep staying and working in the country legally and as soon as I-485 is denied, their permit to stay lawfully will also end and they will be neither in lawful stay nor lawful presence in the United States from that point on. There are innumerable illustrations for aliens in lawful presence pending certain legal proceedings. Under the employment-based nonimmigrant proceedings, for instance H-1B, the alien beneficiaries are allowed to stay, after their current I-94 expires, "pending" extension or change of status petitions. Strictly speaking, they are not in lawful status but they are in lawful presence under the immigration law. There are many and many different immigration proceedings that have produced aliens in lawful presence pending underlying "legal" proceedings.
  • Deferred Action is an aged-old discretionary relief and a valid legal proceeding. Once the Deferred Action is granted, the aliens remain in the country in a lawful presence until it is lifted or not extended. Indeed, the law is not intended to give them any legal right other than stay and work considering extreme humanitarian concerns involved for those with no adverse record. Deferred Action is not any different from any aliens who are allowed to keep staying and work pending legal proceedings. Until now, states have been issuing state's driver licenses to those in lawful presence under the federal statute of REAL ID Act. DACA approved DREAMers with EAD will stay in lawful presence under the immigration law and should not be denied of a driver license in the states.

No comments:

Post a Comment

Comment Posting Tips:

1. To estimate when priority date can be current, please see this GC Calculator:

2. View or add your I-130/I-485/NVC case to GC Tracker:

3. You can browse or post new questions in GC Forum:

Comments posted above will only appear in this blog post. Comments posted below will appear across all blog posts:

comments powered by Disqus