AG: ONLY GREEN CARD HOLDERS MAY OBTAIN DRIVER'S LICENSES IN MICHIGAN

Dan Kowalski just posted this new Michigan Attorney General opinion at Bender's and I had to read it a couple of times for it to sink in, but it looks like the AG just instructed the DMV in that state to stop issuing driver's licenses not only to unauthorized immigrants, but every one who is not a permanent resident as defined in the Immigration and Nationality Act.

Michigan was one of the few states in the US permitting unauthorized immigrants to get driver's licenses and the media will likely focus on that important topic since the AG decision will now bar that. But it goes much further than this and it could have far reaching implications for Michigan's ability to attract global talent.

The opinion notes that Michigan law states the following:

(1) The secretary of state shall not issue a license under this act to any of the following persons:

* * * (h) A nonresident, including, but not limited to, a foreign exchange student. [MCL 257.303(1)(h); emphasis added.]

Section 34 of the Michigan Vehicle Code, MCL 257.34, defines "nonresident" to mean "every person who is not a resident of the state."

Section 51a of the Michigan Vehicle Code, MCL 257.51a, defines "resident" as follows: "Resident" means every person who resides in a settled or permanent home or domicile with the intention of remaining in this state. A person who obtains employment in this state is presumed to have the intention of remaining in this state. This definition shall apply to the provisions of this act only.

The Attorney General discusses this provision and reaches this conclusion:

Michigan law must be interpreted against that background of federal law when considering questions involving aliens. It would be inconsistent with that body of law to find that a person in this country illegally, who has not secured permanent alien status from the federal government, can be regarded as a permanent resident in Michigan. There is nothing in the language or history of the Michigan Vehicle Code to indicate the Legislature intended to do so.

At first I thought that the AG just simply didn't understand immigration law and would include people legally residing in Michigan. But he goes on to specifically mention foreign students as not meeting the definition so it looks like Michigan is about to take away driver's licenses for foreign executives on employment-based non-immigrant visas (Es, H-1Bs, Os, Ls, etc.) as well as individuals in asylum status and those with pending adjustment of status applications waiting on green cards. I think I'd like to be a fly on the wall of the AG when this news starts to circulate around the state of Michigan.

Maybe I'm not reading the decision correctly (it's not very well written, in my opinion). Feel free to weigh in if you have another view.

Comments

nowshera.

When you are required to report an accident to the DMV

When you are required to report an accident to the DMV

[S.Sambasivan]

This will cause a lot of hardships for H1 B holders from various countries working in Michigan and also the students. After all they stay only with the permission or visa issued by the competent authority of USA and am not sure whether such persons can be called non-residents for the purpose of issue of licences. Michigan has to be properly advised. I am sure they will rethink on this issue and look at the pros and cons before taking a final stand on the issue

[JoeF]

"It is fact that one needs a special permit to drive on Catalina island, and the permit takes 10 years to get."

No, it is a Vehicle Permit, not a Driving Permit.
You can use your DL just fine to drive one of the "auto-ettes" on Catalina Island.
Owning a full-size vehicle is what takes long. From one website: "It is very difficult to get a permit to own a full-sized vehicle on Catalina Island. The waiting list is 15 years long and requires residency on the island"
But again, that has absolutely NOTHING to do with DLs. Next time, I suggest doing at least a little search with Google...

this is racist

[Legal and no longer waiting]

Well, as my experience goes, I have obtained 18 months employment permission ("practical traning") while on "exchange student" J1 visa, which, in the AG interpretation would exclude me from the eligible people, but it would directly contradict the law. One thing for sure, the AG has very poor knowledge of immigration, and probably should have kept his fingers out of the pile.

[Legal and no longer waiting]

Well, as my experience goes, I have obtained 18 months employment permission ("practical traning") while on "exchange student" J1 visa, which, in the AG interpretation would exclude me from the eligible people, but it would directly contradict the law. One thing for sure, the AG has very poor knowledge of immigration, and probably should have kept his fingers out of the pile.

[Cathy]

"A person who obtains employment in this state is presumed to have the intention of remaining in this state. ... Doesn't this cover those foreign executives on employment-based non-immigrant visas (H-1Bs, Os, Ls, etc.)?"

I would think so. However, what about the H4s or TDs or others on dependent visas that do not have derived work status? Would the working spouse be entitled to a driver's license while the non-working spouse is not entitled? That's nonsensical.

[John C]

"A person who obtains employment in this state is presumed to have the intention of remaining in this state."

Doesn't this cover those foreign executives on employment-based non-immigrant visas (H-1Bs, Os, Ls, etc.)?

[legal-forever-waiting-forever]

that is correct. what i was pointing out was that medical residents get it one year at a time because of the way residency contracts are set up. this means at any DL renewal they would have a visa for less than a year...

[Lagal and no longer waiting]

J-1 is not only for medical fellows, though. I had one as an MBA student because the university sponsored me on a scholarship. It did not have the 2-year requirement, by the way.

[legal-forever-waiting-forever]

J-1 is an exchange visitor visa
medical residents and fellows get it one year at a time.

NYTimes editorial:

http://www.nytimes.com/2007/12/30/opinion/30sun1.html?_r=1&oref=slogin

Editorial | In Office
Immigration and the Candidates

Published: December 30, 2007

[hmm]

I take back whatever I said on exchange students (incidentally, I spent 3 years as J-1 not as a student though, but I of course knew students on J-1, so not clear what I was thinking about.)

Also AILA posted reply to the Michigan AG (see bibdaily.com) which shows they are worried too, so probably I did not read the ruling correctly.

[Legal and no longer waiting]

So, now we know what is worse than "legislating from the bench". It is "legislating from the excutive branch". I think the law made perfect sense. The interpretation is right-down carazy. To those who think that "exchange students" are here for less than a year, I was an exchange student for almost three years - two years in grad school plus one year working. And yes, I had a three year J-1 visa stamp, too.

[USC]

"UCS: as usual we have trouble understanding each other."

Oh, come on. You clearly said:

"they give DLs only to those who lived there for 10 years (as I recall)."

AFAIK, DLs = Driver Licenses.

[hmm]

UCS: as usual we have trouble understanding each other. It is fact that one needs a special permit to drive on Catalina island, and the permit takes 10 years to get. Most locals drive golf carts instead. Having California DL is not enough. I am not sure what is the legal side of the story, but surely local government can decide the town is car-free and allow nobody to drive there. On Catalina there are exceptions for 10 year residents. If you think one can rent a car there without the permit or just bring a car by boat and start driving, well, I think this is not true and my next question is whether you want to bet, and how much money you want to put on this issue. I certainly would not mind earning extra cash for the holidays.

[Ron]

DMV? What the hell is that?

I have lived in Michigan all my live and have never visited a DMV whatever the hell that is.

We have too many idiots on the road here anyway, they should make it as hard to get as a Führerschein since a Michigan DL can be easily exchanged for a Führerschein.

[USC]

"e.g. on Catalina islands off California coast they give DLs only to those who lived there for 10 years (as I recall)."

That is absolutely incorrect. Catalina Island is part of California. If there is a DMV office on the island issuance of a DL would be governed by the requirements set forth by the State of California and not by the Local Catalina authorities.

"it is up to the state/local government to determine who can drive legally,"

No. Issuance of a DL is a State matter. Counties, Cities, Towns and Villages cannot make decisions contrary to State Law.

[LegalOption]

"let's hope for a generous dollop of wisdom."

Sadly that may be hoping for too much. Just look at the state law adopted in Tennessee where adjustees cannot get a license.

[legal-forever-waiting-forever]

However, I really doubt that the Michigan AG meant to touch H1B/L1's, and even if he did, he is likely to back off, so I suspect the whole discussion is moot.

that may be true. however these things have a way of resulting in unintended consequences. "resident" has a way of excluding non GC holders. how about "alien workers" that have not lived in Mi 7 years and don't own a house etc? do the physicians stop manning the inner city hospitals?
so everything depends on the pub secy of state who will interpret this. let's hope for a generous dollop of wisdom.

[LegalOption]

Trying again.

a. $100,000

[hmm]

"Even from a legal standpoint, how can this be defensible, when people who have a legitimate reason and US gov't permission for being here are targeted by this sort of crazy interpretation of the law?"

There's nothing new under the sun. Those on H4 visas (spouses of H1-B's) have long had troubles to get social security numbers without which one cannot get a driver's licence in most states. Remember that driving is not a constitutional right and it is up to the state/local government to determine who can drive legally, e.g. on Catalina islands off California coast they give DLs only to those who lived there for 10 years (as I recall).

However, I really doubt that the Michigan AG meant to touch H1B/L1's, and even if he did, he is likely to back off, so I suspect the whole discussion is moot.

[LegalOption]

Well, I meant to post 4 options.

a. $100,000

[LegalOption]

I'm curious. Just how expensive would it be to challenge any resulting state law? I'm assuming the reasoning behind Toll v. Moreno would still apply in this case and the case wouldn't have to go to the Supreme Court.

1. $100,000

[Greg Siskind]

>>See footnote 10. Does this not cover certain categories of legal immigrant categories, like adjustees etc.?<<

I don't read it that way.

[Alien]

See footnote 10. Does this not cover certain categories of legal immigrant categories, like adjustees etc.?

[Alien]

Unbelievable! From giving drivers licenses to illegals to making it harder for legitimate, students, researchers and skilled green card applicants, researchers, doctors etc something as basic as drive to work.
This is not the kind of policy that will get Michigan out of the rut it is in economically. Michigan is one of the states that lost population in the last few years, house prices are imploding here and the solution is to make it hostile to legal immigrants?
Even from a legal standpoint, how can this be defensible, when people who have a legitimate reason and US gov't permission for being here are targeted by this sort of crazy interpretation of the law?

Actually, I do not even see why F-1's are in trouble

"(1) The secretary of state shall not[7] issue a license under this act to any of the following persons:
* * *
(h) A nonresident, including, but not limited to, a foreign exchange student. [MCL 257.303(1)(h); emphasis added.]"

Michigan law talks about "exchange students", who are typically in the country for less than a year.

But otherwise I agree, the AG seems incompetent on immigration issues. Why is anyone so surprised? Today immigration is like global warming: everyone has an opinion, and nobody has a clue.

[USC]

A couple of excerpts:

"Resident" means every person who resides in a settled or permanent home or domicile with the intention of remaining in this state.

Someone here illegally CAN have the intention of remaining in Michigan if he intends to legalize his status, for instance those to whom waivers are available or those who are eligible for AoS on payment of a penalty.

"In an entirely different context, not fraught with national security and false identification concerns, or a statutory definition mandating permanency of residence, the Michigan Court of Appeals allowed illegal aliens to be considered residents. In Cervantes v Farm Bureau General Ins Co of Michigan, 272 Mich App 410, 412; 726 NW2d 73 (2006)"

This character is supposed to follow the law and the CoA decision and he chooses to sweep it away by claiming "not fraught with national security and false identification concerns."

Some lawyer! Only a Republican could sign his name to trash like this. I would bet that he is a Pub. Any takers?

[Jay]

This is really really crazy(controlling myself from saying stupid)

[hmm]

The way I read the AG opinion dual intent non-immigrants should be eligible for the driver's licence. On the other hand F-1's are in trouble. I wonder if this matter can be litigated... I know that judges often give DL's to those with multiple DWI offences on humanitarian grounds, such as single mom so she could work. Why a student with a 12-month-lease at an apartment not within walking distance to campus cannot win judges sympathy?

[hmm]

The way I read the AG opinion dual intent non-immigrants should be eligible for the driver's licence. On the other hand F-1's are in trouble. I wonder if this matter can be litigated... I know that judges often give DL's to those with multiple DWI offences on humanitarian grounds, such as single mom so she could work. Why a student with a 12-month-lease at an apartment not within walking distance to campus cannot win judges sympathy?