Driver’s Licenses Valid for I-9 Purposes Despite Real ID Noncompliance

By: Alexandra LaCombe, Jackson Lewis, P.C.

 

At a glance

Since 2013, a growing number of states have been issuing driver’s licenses in one form or another to undocumented workers.  Although Michigan is not currently one of these states, Michigan employers need to be aware of their responsibilities when a new hire is presenting a noncompliant license for I-9/employment verification purpose once REAL ID law goes into effect.

Background

The Trump Administration has been conducting “a department-wide study of the effects of issuing state driver’s licenses to undocumented immigrants.” Department of Homeland Security spokesperson said that the study is tied to matters of national security, citing the Administration’s concern that the licensing laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Driver’s licenses issued to undocumented immigrants will not be REAL ID compliant. The REAL ID law, which will go into full effect on October 1, 2020, establishes security standards for the issuance of driver’s licenses and other identification that are needed to enter federal facilities, nuclear power plants and to board airlines – even for domestic flights.  In order to obtain a REAL ID compliant driver’s license, an individual must, among other things, have legal status in the United States. Under the REAL ID regulations, states may continue to issue licenses that are not REAL ID compliant but they must be marked prominently with annotations such as “not for federal identification purposes” or “driving only.”

Most of the states that are issuing “driving only” licenses have large populations of undocumented immigrants.  Because undocumented immigrants will still have to pass all required driving tests, state authorities believe that licensing these individuals yields safer drivers.  In this case, the state and federal laws are aimed at achieving different objectives—with employers facing potentially conflicting information.

What it means for employers

Under current guidelines, licenses marked for driving purposes only should still be accepted as List B/identification documents for Form I-9 and E-Verify purposes if they meet the regulatory requirements — contain a photograph or information such as name, date of birth, gender, height, eye color, and address.  As the REAL ID deadline approaches, employers need to be vigilant regarding further updates on this issue.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 936-1929 or alexandra.lacombe@jacksonlewis.com.  Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Jackson Lewis, P.C.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020