For Release: November 15, 2010
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Official opinion issued: DMV not required to accept federal employment documents as proof of lawful status in U.S. for issuing drivers’ licenses
RICHMOND (November 15, 2010) – Attorney General Ken Cuccinelli issued an official opinion Friday informing the Virginia Department of Motor Vehicles (DMV) that it is not required to accept federal work permit cards as proof of lawful status in the United States for the purpose of issuing a driver’s license, permit, or special identification card. The Employment Authorization Document, also known as an “EAD” or a “work permit,” is for individuals who are temporarily in the United States and seeking employment.
The opinion was in response to a request from Virginia DMV Commissioner Richard Holcomb. Virginia law requires applicants for drivers’ licenses, permits, and ID cards to present documentation showing they are lawfully present in the United States. The law does not spell out which documents an applicant can rely upon to establish lawful status. Therefore, the opinion concludes that the DMV has the authority and the discretion to decide which documents are appropriate.
With respect to the Employment Authorization Document, the opinion states that the commissioner was within his discretion to discontinue using it to establish lawful status. Two separate branches of the federal government have stated that the EAD does not provide reliable proof of lawful status:
A decision of the United States District Court for the Eastern District of Virginia in Equal Access Educ. v. Merten: “While authorization to work in the United States implies some form of authorization to be in the United States, it does not necessarily mean that an alien enjoys lawful status in the United States.”
The Department of Homeland Security, in regulations adopted in 2008, likewise has indicated that the EAD, by itself, should not be considered as evidence of lawful status in the United States (73 Federal Register 5333 (Jan. 29, 2008)).
Also, as the opinion points out, the Virginia DMV web site lists 20 other documents besides the EAD that can be used to prove lawful status as required by the Virginia statute. This includes U.S. birth certificates, passports, certificates of naturalization, resident alien cards, and more. See http://dmvnow.com/webdoc/pdf/dmv141.pdf for complete information.
The opinion further concludes that the DMV is not authorized under Virginia law to cancel a driver’s license once a person has ceased to be lawfully present in the United States; for example, when a person is ordered deported or has been deported. A change in the law would be required to authorize the DMV to take the step of canceling a driver’s license in those situations.
The opinion can be found on the attorney general’s web site at: http://www.vaag.com/Media and News Releases/News_Releases/index.html/Opinions and Legal Resources/Opinions/2010opns/10-092-Holcomb.pdf
Additional information relating to the process and documentation required for obtaining drivers’ licenses, permits, and ID cards can be found on DMV’s website at http://dmvnow.com.
About official opinions
Official opinions do not create new law. Instead, the opinions represent the attorney general’s analysis of the current state of the law based on his thorough review of existing law and relevant prior court decisions. The opinions are not binding either on the requester or on the courts. However, the opinions can be cited in court and courts will give them due consideration.
The official opinions issued by the attorney general are part of the duties of the office. A person authorized by statute, such as a member of the General Assembly or state agency, can ask the attorney general for an official opinion on the law (members of the general public are not empowered to ask for opinions).
A copy of this news release may be found on the website of the Attorney General of Virginia at http://www.vaag.com/Media and News Releases/News_Releases/index.html.
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