Analysis of REAL ID ACT
Us Info | 2012-10-12 13:02

IDs and driver's licenses as identification
In the United States, driver's licenses are issued by the states, not by the federal government. Additionally, because the United States has no national identification card and because of the widespread use of cars, driver's licenses have been used as a de facto standardform of identification within the country. For non-drivers, states also issue voluntary identification cards which do not grant driving privileges. Prior to the REAL ID Act, each state set its own rules and criteria regarding the issuance of a driver's license or identification card, including the look of the card, what data is on the card, what documents must be provided to obtain one, and what information is stored in each state's database of licensed drivers and identification card holders.
 
Federally mandated standards for state driver's licenses or ID cards
Driver's license implications
The REAL ID Act's implications for driver's licenses and ID cards is detailed in Title II of the Act. Title II of REAL ID — “Improved Security for Driver’s License and Personal Identification Cards” — repeals the driver's licenses provisions of theIntelligence Reform and Terrorism Prevention Act,[14] also known as the "9/11 Commission Implementation Act of 2004", that was enacted in December 2004. Section 7212 of that law established a cooperative state-federal process, via a negotiated rule-making procedure, to create federal standards for driver’s licenses.
Instead, the Real ID Act directly imposes specific federal driver’s license standards.
 
The REAL ID Act Driver's License Summary details the following provisions of the Act's driver's license title:
 
Authority
Data Retention and Storage
DL/ID Document Standards
Grants to States
Immigration Requirements
Linking of Databases
Minimum DL/ID Issuance Standards
Minimum Standards for Federal Use
Repeal of 9/11 Commission Implementation Act DL/ID Provisions
Security and Fraud Prevention Standards
Verification of Documents
After 2011, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the REAL ID Act. The DHS will continue to consider additional ways in which a REAL ID license can or should be used for official federal purposes without seeking the approval of Congress before doing so. States remain free to also issue non-complying licenses and IDs, so long as these have a unique design and a clear statement that they cannot be accepted for any Federal identification purpose. The federal Transportation Security Administration is responsible for security check-in at airports, so bearers of non-compliant documents would no longer be able to travel on common carrier aircraft without additional screening unless they had an alternative government-issued photo ID.
 
People born on or after December 1, 1964, will have to obtain a REAL ID by December 1, 2014. Those born before December 1, 1964, will have until December 1, 2017 to obtain their REAL ID.
 
The national license/ID standards cover:
How the states must share their databases both domestically and internationally through AAMVA.
What data must be included on the card and what technology it is encoded with;
What documentation must be presented and electronically stored before a card can be issued.
Strictly speaking, many of these requirements are not new. They replace similar language in Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.L. 108-458), which had not yet gone into effect before being repealed by the Real ID Act.
 
Data requirements
A Real ID-compliant form of identification requires, at a minimum, the following pieces of data:
 
Full legal name,
Signature,
Date of birth,
Gender,
Unique, identifying number,
Principal residence address,
Front-facing photograph of the applicant.
Said cards must also feature specific security features intended to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes. These cards must also present data in a common, machine-readable format (bar codes, Smart card technology, et al.). Although the use of wireless RFID chips was offered for consideration in the proposed rulemaking process, it was not included in the latest rulemaking process. DHS could consider additional technological requirements to be incorporated into the licenses after consulting with the states. In addition, DHS has required the use of RFID chips in its Enhanced Driver's License program, which the Department is proposing as an alternative to REAL ID.
 
Documentation required before issuing a license or ID card
 
Before a card can be issued, the applicant must provide the following documentation:
 
A photo ID, or a non-photo ID that includes full legal name and birthdate.
Documentation of birth date.
Documentation of legal status and Social Security number
Documentation showing name and principal residence address.
Digital images of each identity document will be stored in each state DMV database.
 
Document Verification Requirements
Section 202(c)(3) of the Real ID Act requires the states to "verify, with the issuing agency, the issuance, validity, and completeness of each document" that is required to be presented by a driver's license applicant to prove their identity, birth date, legal status in the U.S., social security number and the address of their principal residence. The same section states that the only foreign document acceptable is a foreign passport.
 
The DHS final rule regarding implementation of the Real ID Act driver's license provisions relaxes, and in some instances waives altogether, these verification requirements of the Real ID Act. Thus the DHS rule concedes that there is no practical mechanism to verify with the issuers the validity of documents proving the applicant's primary address (such as a mortgage statement or a utility bill) and leaves the implementation of this verification requirement to discretion of the states (page 5297 of the DHS final rule in the Federal Register). However, the DHS rule, Section 37.11(c), mandates that the Real ID license applicants be required to present at least two documents documenting the address of their primary residence.
 
The DHS rule declines to implement, as impractical, the provision of the Act requiring verification of the validity of foreign passports, presented by foreign driver's license applicants as proof of identity, with the authorities that issued these foreign passports (page 5294 of the DHS final rule in the Federal Register).
 
Section 37.11(c) of the DHS final rule allows the states to accept several types of documents as proof of social security number: a social security card, a W-2 form, an SSA-1099 form, a non-SSA-1099 form, or a pay stub bearing the applicant's name and SSN. However, the states are not required to verify the validity of these documents directly with their issuers (e.g. with the employer that issued a W-2 form or a pay stub). Instead, the DHS rule requires the states to verify the validity, and its match with the name given, of the social security number itself, via electronically querying the Social Security On-Line Verification (SSOLV) database managed by the Social Security Administration.
 
The DHS rule, Section 37.13(b)(3), specifies that the validity of birth certificates, presented to document the date of birth or to prove U.S. citizenship, should be verified electronically, by accessing the Electronic Verification of Vital Events (EVVE) system maintained by the National Association of Public Health Statistics and Information Systems (NAPHSIS), rather than directly with the issuers of the birth certificates (such as hospitals).
 
Linking of license and ID card databases
Each state must agree to share its motor vehicle database with all other states. This database must include, at a minimum, all the data printed on the state drivers' licenses and ID cards, plus drivers' histories (including motor vehicle violations, suspensions, and points on licenses).
 
Original legislation contained one of the most controversial elements which did not make it into the final legislation that was signed into law. It would have required states to sign a new compact known as the Driver License Agreement (DLA) as written by the Joint Driver's License Compact/ Non-Resident Violators Compact Executive Board with staff support provided by the American Association of Motor Vehicle Administrators AAMVA and as approved by state Driver Licensing Agency representatives. The DLA is a consolidation of the Driver's License Compact and the Non-Resident Violators Compact, which currently have 46 and 45 member states, respectively. The following controversial elements of the DLA are already in the existing compacts: a convicting state must report out-of-state convictions to the licensing state, states must grant license reciprocity to drivers licensed in other states, and states must allow authorities in other states access to driving records, consistent with the Driver Privacy Protection Act.
 
Foreign Data Sharing
New controversial requirements of the DLA are: (1) provinces and territories in Canada and states in Mexico are allowed to join the DLA and (2) member states, provinces, and territories are subject to reviews by DLA authorities for compliance with the provisions of the DLA. The DLA originated in concept with the 1994 establishment of a North American Driver License Agreement (NADLA) task force, and has created controversy among state representatives opposed to citizen data being shared with other countries.According to a 2005 analysis of the DLA done by the National Conference of State Legislators, the DLA defines "jurisdiction" to allow participation by a territory or province of Canada and by any state of the Republic of Mexico or the Federal District of Mexico. The DLA can be amended by a vote of at least two-thirds of the member jurisdictions.
 
DHS regulations regarding implementation of the Driver's License provisions of the Act
 
On January 11, 2008 DHS released the final rule regarding the implementation of the driver's licenses provisions of the Real ID Act. Under the DHS final rule, those states that chose to comply with Driver's License provisions of the Real ID Act are allowed to apply for up to two extensions of the May 11, 2008 deadline for implementing these provisions: an extension until no later than December 31, 2009 and an additional extension until no later than May 11, 2011. The DHS final rule mandates that, as of March 11, 2011, driver's licenses issued by the states that are not deemed to be in full compliance with the Real ID Act, will not be accepted for federal purposes. The Secretary of Homeland Security is given discretion to determine the scope of such official purposes in the future. For the states that do not apply to DHS, by March 31, 2008, for an extension of the May 11, 2008 implementation deadline, that deadline will apply: after May 11, 2008 driver's licenses issued by such states will not be accepted for federal purposes.
 
After the final implementation deadline, some non-Real-ID-compliant licenses will continue to be accepted for federal purposes, provided DHS judges that the state which issued such a license is in full compliance with the Real ID Act by the final implementation deadline. However, in order for their licenses to be accepted for federal purposes, all people born after December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2014. Additionally, in order to be accepted for federal purposes, people born before December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2017.
 
In March 2011 the U.S. Department of Homeland Security further postponed the effective date of the Real ID Act implementation deadline until January 15, 2013,
 
Immigration
As of May 11, 2005, several portions of the Real ID Act have imposed higher burdens and stricter standards of proof for individuals applying for asylum and other related forms of relief. For the first time, immigration judges can require an applicant to produce corroborating evidence (8 U.S.C. § 1229a(c)(4)(B). Additionally, the government may also require that an applicant produce corroborating evidence, a requirement that may only be overcome if the judge is convinced that such evidence is unavailable (8 U.S.C. § 1252(b)(4)).
 
Restricting illegal immigrants or legal immigrants who can't prove their legal status, or are without social security numbers, from obtaining driver's licenses may keep them from obtaining liability insurance and from working, in practice, causing many immigrants and foreign nationals to lose their jobs or to travel internationally in order to renew their drivers license. Furthermore, for visitors on J-1 and H1B visas, the fact that visas may expire before their legal stay is over (this happens due to the fact that J-1 Visas are issued with a one year expiration date but visitors are allowed to stay for their "duration of stay" as long as they have a valid contract) can make the process of renewing a driver's license extremely complex and, as mentioned above, force legal foreign citizens to travel abroad only to renew a VISA which wouldn't need to be renewed if it weren't for the need to renew one's drivers license. Although the new law does allow states to offer "not for federal ID" licenses in these cases, and that some states (e.g., Utah and Tennessee) have already started issuing such "driving privileges certificates/cards" in lieu of regular drivers licenses, allowing such applicants to be tested and licensed to drive and obtain liability insurance, the majority of US states do not plan to offer "not for federal ID" licenses. In October 2007, then-governor of New York Eliot Spitzer announced that the state will adopt a similar "multi-tiered" licensing scheme in which the state will issue three different kinds of driver licenses, two of which comply with the Real ID security requirements and one which will be marked as "not for federal ID" purposes. However, following a political outcry, Spitzer withdrew his proposal to issue licenses to those unable to prove legal residence.
 
Waiving laws that interfere with construction of border barriers
 
An earlier law (Section 102 of Pub.L. 104-208, which is now part of 8 U.S.C. § 1103) provided for improvements to physical barriers at the borders of the United States.
 
Subsection (a) of this law reads as follows: "The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States."
 
Subsection (b) orders the Attorney General to commence work on specified improvements to a 14-mile section of the existing border fence near San Diego, and allocates funds for the project.
 
Subsection (c) provides for waivers of laws that interfere with the work described in subsections (a) and (b). Prior to the Real ID Act, this subsection allowed waivers of only two specific federal environmental laws.
 
The Real ID Act amends the language of subsection (c) to make the following changes:
 
Allows waivers of any and all laws "necessary to ensure expeditious construction of the barriers and roads under this section."
Gives this waiver authority to the Secretary of Homeland Security (rather than the Attorney General). Waivers are made at his sole discretion.
Restricts court review of waiver decisions: "The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph." Claims are barred unless filed within 60 days, and cases may be appealed "only upon petition for a writ of certiorari to the Supreme Court".
Application for asylum; deportation of aliens for terrorist activity
 
The Real ID Act introduces stricter laws governing applications for asylum and deportation of aliens for terrorist activity. However, at the same time, it makes two minor changes to U.S. immigration law:
 
Elimination of the 10,000 annual limit for previously approved asylees to adjust to permanent legal residence. This had been urged for years because the average asylee had a 17-year wait before he would be able to achieve legal resident status. As a result, in fiscal years 2005 and 2006, the backlog was greatly reduced as 147,131 asylees were granted legal permanent residence status.
Usage of 50,000 unused employment-based visas from 2003. This was a compromise between proponents who had earlier tried to include all employment visas which went unused between 2001 and 2004, and immigration restrictionists. They were used, mostly in fiscal year 2006, for Schedule A workers newly arrived mainly from the Philippines and India, rather than for adjustments of status cases like the American Competitiveness in the 21st Century Act.
The deportation of aliens for terrorist activities is governed by the following provisions:
 
Section 212(a)(3)(B): Terrorist activities
The INA (Immigration & Nationality Act) defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
 
(I) The hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in Section 1116(b)(4) of Title 18, United States Code) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any:
(a) biological agent, chemical agent, or nuclear weapon or device.
(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
Other pertinent portions of Section 212(a)(3)(B) are set forth below:
 
"Engage in terrorist activity" defined
As used in this chapter (Chapter 8 of the INA), the term, "engage in terrorist activity" means in an individual capacity or as a member of an organization:
 
to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
to gather information on potential targets for terrorist activity;
to prepare or plan a terrorist activity;
to solicit funds or other things of value for:
(aa) a terrorist activity;
(bb) a terrorist organization described in Clause (vi)(I) or (vi)(II);
(cc) a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity;
to solicit any individual:
(aa) to engage in conduct otherwise described in this clause;
(bb) for membership in terrorist organization described in Clause (vi)(I) or (vi)(II); or
(cc) for membership in a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity; or
to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training:
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in Clause (vi)(I) or (vi)(II); or
(dd) to a terrorist organization described in Clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.
This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."
 
"Representative" defined
As used in this paragraph, the term, "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
 
"Terrorist organization" defined
As used in Clause (i)(VI) and Clause (iv), the term ‘foreign terrorist organization’ means an organization:
 
designated under Section 219 (8 U.S.C. § 1189);
otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in Subclause (I), (II), or (III) of Clause (iv), or that the organization provides material support to further terrorist activity; or
that is a group of two or more individuals, whether organized or not, which engages in the activities described in Subclause (I), (II), or (III) of Clause (iv).
Section 140(d)(2) of the "Foreign Relations Authorization Act", Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence, perpetrated against noncombatant targets by subnational groups or clandestine agents."
 
Delivery bonds
The Real ID Act introduces complex rules covering "delivery bonds." These resemble bail bonds, but are to be required for aliens that have been released pending hearings.
 
Miscellaneous provisions
The remaining sections of the Real ID Act allocate funding for some reports and pilot projects related to border security, and change visa limits for temporary workers, nurses, and Australians.
 
Under the REAL ID Act, nationals of Australia are eligible to receive a special E-3 visa. This provision was the result of negotiations between the two countries that also led to the Australia-United States Free Trade Agreement
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