California Driver’s License Renewal for Nonimmigrants Awaiting Status Extension
In the order of the legal universe, the legislature is not supposed to enact laws that violate the state or federal constitutions, and the regulatory agencies are not supposed to promulgate regulations or enact policies that violate state laws. The state law found at California Vehicle Code § 12801.5 only requires that in order to be eligible to receive a driver’s license: “the applicant’s presence in the United States is authorized under federal law.” Pursuant to the current federal law, nonimmigrant workers are lawfully allowed to remain in the U.S.
pursuant to a timely filed extension of status while that extension is pending adjudication with USCIS, even if the wait extends beyond the expiration date of the person’s most recent I-94 card. The state regulation found at 13 California Code of Regulations § 15.00(d) contravenes the state law and is being applied in a manner that is preventing lawful nonimmigrants from obtaining driver’s license extensions after the expiration of the most recent I-94 card, although the regulation does provide some additional wiggle room to Canadians.
Penalties in California for driving without a license can include misdemeanor prosecution and having the driver’s car impounded. Other than having the nonimmigrant worker walk, bike, skate or take public transportation to work, an employer facing an imminent I-94 expiration may have no practical option other than to pay the USCIS premium processing fee of $1000 in an attempt to obtain a new I-94 card through the promised response time of 15 days or sooner. While the premium processing option is available to most work authorized nonimmigrants, including H-1B, L-1, E-1, E-2 and TN nonimmigrants, it is not available to all nonimmigrant visa categories. The fundamental unfairness of denying driver’s licenses to persons lawfully in the U.S. has led the Center for Human Rights and Constitutional Law to explore the possibility of filing a class action law suit against the state. Even if the suit is filed and ultimately successful, this matter may not be resolved for many months or possibly longer. In the interim, employers may want to move as quickly as possible to file extension petitions when they are within the 6 month window allowed by USCIS.
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS announced that as of August 27, 2010 it had received 13,000 master’s cap filings as well as 34,000 filings for the other cap. While it is impossible to know how much longer H-1B visas will remain available for Fiscal Year 2011, some commentators have estimated that the visas could remain available through the spring of 2011.
The Border Security Act passed this summer by Congress has resulted in a $2000 fee increase for new H-1B petitions and a $2250 for new L-1 petitions for companies with more than 50 employees AND more than 50% of the employees working pursuant to H-1B, L-1A, L-1B, or L-2 (EAD) status. Although the new fees were touted as going a long way to pay for the $600 million in additional spending allocated to border security, the reality is that the new law will apply to very few employers. Even if all 85,000 H-1B visas for the next fiscal year fell under this provision, only $170 million would be generated. An additional 191,112 L-1 visas subject to the new fees would need to be issued in order for the government to break even. Given the current adjudication war against the L-1 program, specifically against employer with more than 50% of their workforce on L-1 or H-1B visas, it seems highly unlikely that the government will be able to reach its revenue target.
The U.S. State Department recently announced that: “[e]ffective immediately, non-immigrant visa applicants may book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live. Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.” See: www.beijing.usembassy-
These developments are welcome accommodations. The U.S. embassy and consulates in China have been notoriously difficult to use in requesting visas, especially business and tourist visitor visas. The news releases cited above note that trade, tourism and people-to-people exchanges between the U.S. and China have increased dramatically in recent years. In the past month, a friend explained that in connection with a recent trade mission to the U.S., only half of the Chinese applicants were able to obtain a U.S. visa in time for the scheduled events. The State Department’s announcements appear to indicate that in doing what is best for America, it is coming around to the idea that it might be in the national interest to help the U.S. economy by giving more visas to foreigners seeking to spend money in the U.S.
With specific regard to business visitor applicants, it is important to keep in mind that certain words including “work” and “training” are defined under immigration law in a precise way which may be different from the common understanding of those terms. Also, factors that an applicant may think are helpful to the case, such as having come to the U.S. many times before, having lived or worked here previously, or having family here, may actually be factors that the consulate uses to deny visa issuance. The State Department provides some helpful information on its website at: www.travel.state.gov, including information about the concept of “immigrant intent” as defined in Immigration and Nationality Act Section 214(b), which is the most frequently used basis for visa refusal. Additional information specific to the B-1 visitor visa can be found in the State Department’s Foreign Affairs Manual (the FAM) at: www.state.gov
As noted in the FAM and elsewhere, key points to keep in mind when drafting a business visitor visa support letter can include:
- The applicant’s continuing maintenance of an unabandoned residence abroad, as evidence by the continued ownership or lease of a residence, close family members remaining abroad during the visit, and other strong ties abroad;
- The applicant’s remaining on the foreign payroll for the duration of the U.S. visit;
- Explanation of who will pay for the trip to the U.S. and cover any incidental expenses here;
- Explanation of the purpose of the visit, which makes clear that no “work” will take place in the U.S. While an extended series of meetings and consultations may be allowed, work that competes with the domestic work force while the applicant is physically present in the U.S. is not allowed on a visitor visa;
- It is often helpful to emphasize the benefit of the visit to the entity abroad, rather than the benefit to the U.S. entity
- Having a prepaid, nonrefundable, roundtrip ticket with fixed departure and return dates can also help to avoid misunderstandings with DHS when the applicant attempts to enter the U.S.;
- Most importantly, any information provided to the government must be truthful, accurate and correct. Any misunderstanding may be held against the applicant, and can result in a permanent ineligibility.