Hawaii Passes Lawful Presence

The quickly diminishing club of state DMVs licensing visa overstays, foreign criminals and illegal immigrants has just lost another member. On April 20, 2010, without much fanfare, Hawaii Governor Linda Lingle signed House Bill 134 into law, bringing the number of states not requiring legal presence down to a handful. The new law requires all applicants for any type of driver’s license or state issued ID to submit proof of United States citizenship or legal presence in the United States.  

The bill, introduced at the beginning of 2009, went through a number of iterations and eventually passed with amendments and no votes against.  The bill was supported by both the Hawaii Department of Transportation and Honolulu’s Licensing Administrator for the Division of Motor Vehicles, Dennis A. Kamimura. Administrator Kamimura gave the bill a favorable recommendation and suggested a number of positive revisions.

The Governor‘s signature on HB 134 codifies Hawaii’s commitment to stopping criminals not lawfully present in the United States and residing in the state from obtaining a Hawaiian driver’s license or ID. In addition, the law brings Hawaii one step closer to meeting the 18 Interim Benchmarks of Public Law 109-13 (REAL ID) in 2010 or 2011.

Lawful presence or legal presence, in the case of Hawaii’s new law, is simply being allowed to be in the United States either as a citizen, permanent legal resident or temporary visa holder, for a set duration of stay. When a foreign national enters the United States by obtaining a visa and enters through a federally regulated port-of-entry, he or she is lawfully (legally) present for the authorized period of admission identified on the visa.

However, if the foreign national enters the United States without passing through a border port-of-entry or international airport, he or she is not lawfully present. Likewise, if a foreign visitor stays in the United States beyond the expiration date of their visa, then he or she is no longer lawfully present and considered a “visa overstay.” These “visa overstays” often remain in the United States for years using a driver’s license, validly issued during the temporary resident’s stay, to drive while remaining undetected and obtaining state benefits or employment. To hinder visa overstays, the law requires that if the “licensee is a legal immigrant; the license shall expire no later than the licensee’s authorized period of stay in the United States” (§286-106 Expiration of licenses [3]). Requiring duration of stay to be tied to the expiration date of a state driver’s license or ID is number 12 of the 18 interim REAL ID benchmarks. 

Under this new law, Hawaii Division of Motor Vehicles’ personnel will use the Systematic Alien Verification of Entitlements or SAVE system to verify with the United States Citizenship and Immigration Services that the proofs of lawful presence documents are valid. The documents include an I-551 resident alien card, I-688 temporary resident identification card or I-688B/ I-766 employment authorized card (For a full list go to the Hawaii Division of Motor Vehicles).

Requiring documents proving lawful presence brings Hawaii into closer compliance with Public Law 109-13 (REAL ID). The law sets minimum standards for the DMV to verify identity, protect Personally Identifiable Information, and physically secure the card against tampering, alteration or counterfeiting. According to the Coalition for a Secure Driver’s License’s research, Hawaii will still be noncompliant with 15 of the 18 benchmarks but many are slated to be finished in 2010 or 2011.

While voluntary for states to comply, driver’s licenses and IDs that are not REAL ID compliant by 2017 cannot be used for the federal purposes of boarding an airplane or entering a federal building. REAL ID compliant driver’s licenses carry a gold star on the face denoting certification by the Department of Homeland Security and  are currently being issued by 9 states: Florida, Indiana, Kansas, Kentucky, Mississippi, Nevada, North Dakota, South Dakota and Utah.