Can a Virginia driver's license be issued, kept, or canceled based on someone's federal Employment Authorization Document?

Plain-English summary

DMV Commissioner Holcomb asked the AG three questions about how Virginia's lawful-presence requirement for driver's licenses, § 46.2-328.1, interacts with the federal Employment Authorization Document (Form I-765, commonly called a "work permit"). The AG gave a layered answer.

First, on whether DMV can accept or refuse to accept an EAD as documentary evidence of lawful status: the AG said DMV has authority to do either. Section 46.2-328.1 doesn't itself define what documents count as evidence of lawful status. That gap leaves DMV with reasonable discretion to draw its own list. DMV's original 2003 list included the EAD; DMV temporarily removed it in September 2010 after receiving information suggesting it might not be trustworthy evidence of lawful status. The AG concluded that decision was within DMV's authority, supported by Eastern District of Virginia case law holding that work authorization does not necessarily mean lawful status, and by federal REAL ID regulations suggesting EADs alone do not establish lawful status.

Second, on what DMV can do about a person who already has a license but later becomes subject to deportation: the AG said § 46.2-328.1 was designed to police status at the time of application, not throughout the license's validity. So DMV cannot cancel or revoke a license just because the holder is in removal proceedings. There is one specific exception: when the licensee applies for a renewal, duplicate, or reissue, AND DMV has been notified by a government agency that the person is not legally in the United States, DMV must require fresh documentary proof of lawful status, and must deny the application if the person cannot provide it.

Third, on whether DMV can cancel a license once someone has been deported: the AG said no. Section 46.2-328.1 contains no authority to cancel a license post-issuance even if the licensee has been deported. The Code would have to be amended to give DMV that authority.

The structure reflects a policy choice that the AG read into the statute. Virginia's law guards the front door (proof of lawful status at application). It does not police what happens after the license is in hand.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This is one of the older AG opinions in this corpus, and the area has changed dramatically. Virginia later created a "driver privilege card" for individuals who cannot establish lawful presence, and the underlying statute has been amended several times. The federal REAL ID requirements have been refined. Anyone working with a current driver's license application or immigration-related licensing question should check the current Virginia statute and the current DMV document list directly.

Common questions

What is an Employment Authorization Document (EAD)?
Form I-765 issued by U.S. Citizenship and Immigration Services. Its primary function is to authorize the holder to work in the United States. People hold EADs for many different reasons: asylum applicants, certain visa-status applicants, DACA recipients (at the time the opinion was written, before DACA's various status changes), individuals in removal-cancellation proceedings, and others. Having an EAD does not always mean the holder has lawful status; it means the federal government has authorized them to work.

Why did DMV temporarily pull the EAD from its acceptable-documents list in 2010?
The opinion notes that DMV "received information indicating that the EAD might not be trustworthy evidence of lawful status." The opinion does not detail what that information was. The AG's analysis stops at concluding the decision was within DMV's discretion.

Can DMV revoke a license because the holder was deported?
No, per this opinion. The statute polices status at application, not afterward. To revoke an already-issued license based on changed immigration status, the legislature would have to amend the Code. The opinion does not address whether DMV could decline to renew, except in the specific situation where another government agency has notified DMV that the person is not legally in the U.S.

If I have a Virginia license and I'm in removal proceedings, what happens?
According to this opinion (as the law stood in 2010), nothing happens to the license itself during proceedings. The license remains valid through its existing expiration date. When you apply for renewal, duplicate, or reissue, the rule of § 46.2-328.1(C) kicks in: if DMV has been notified that you are not legally in the U.S., you would need to show fresh evidence of lawful status. Without that notification, the renewal proceeds as a routine matter.

Does this mean an EAD never works as proof of lawful status?
The opinion says only that DMV may decide it isn't enough on its own. DMV's website continues to list other documents that should be available to anyone who is in fact lawfully present. The opinion's bottom line: if you actually have lawful status, you should have additional documentation beyond just an EAD.

Background and statutory framework

The core lawful-presence statute:

• § 46.2-328.1(A). No original license, permit, or special identification card issued without documentary evidence that the applicant is either a U.S. citizen, a legal permanent resident, or a conditional resident alien.
• § 46.2-328.1(B). Temporary license may be issued to applicants in defined categories: valid nonimmigrant visa, pending or approved asylum application, refugee status, pending or approved temporary protected status, approved deferred action, or pending application for adjustment to permanent resident or conditional resident status.
• Renewal provision. Renewal, duplication, or reissuance of an existing license is presumed valid unless DMV has been notified by a government agency that the applicant is not legally in the U.S.; in that event, fresh evidence of lawful status is required and the application must be denied if the person cannot provide it.

The EAD framework:

• 8 C.F.R. § 240.66(a). Special-rule cancellation of removal procedures (the framework under which the Eastern District of Virginia plaintiff had received an EAD while still being subject to removal).
• Federal REAL ID regulations adopted by DHS in 2008, which the opinion says likewise indicated that the EAD should not be considered, by itself, as evidence of lawful status.

Judicial guidance: the opinion relied on a decision of the United States District Court for the Eastern District of Virginia (which it did not name in the reproduced text), holding that a plaintiff with an EAD issued in connection with removal-cancellation proceedings nonetheless lacked lawful status. The court reasoned that "authorization to work" does not necessarily mean lawful status, and that a person subject to removal who is not in an authorized period of stay is an illegal alien under federal law.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 46.2-328.1, including subsections (A) and (B)
• Va. Code Ann. § 46.2-330
• Va. Code Ann. § 46.2-345
• 8 C.F.R. § 240.66(a)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-092-Holcomb.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

November 12, 2010

Mr. Richard D. Holcomb
Commissioner
Virginia Department of Motor Vehicles
Post Office Box 27412
Richmond, Virginia 23269-0001

Dear Commissioner Holcomb:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask three interrelated questions concerning the authority of the Department of Motor Vehicles (the "Department") in implementing the provisions of § 46.2-328.1, which require an applicant to present valid documentary evidence of lawful status in the United States in order to obtain a driver's license, permit or special identification card ("ID card") from the Department. You first inquire whether the Department has the authority to accept or to refuse to accept the Employment Authorization Document, standing alone, as documentary evidence of lawful status as required by § 46.2-328.1. Second, you ask what steps the Department may take pursuant to § 46.2-328.1 with regard to an individual who has been issued a Virginia driver's license, permit or ID card in accordance with § 46.2-328.1, but who subsequently has become subject to removal or deportation proceedings under federal law. Finally, you ask whether the Department is authorized under § 46.2-328.1 to cancel the driver's license, permit or ID card of that individual if he has been deported by federal authorities.

Response

It is my opinion that the Department has authority to accept or to refuse to accept an Employment Authorization Document, standing alone, as documentary evidence of lawful status in the United States as required by § 46.2-328.1. It is further my opinion that the Department is not authorized to take any steps with regard to an individual who has been issued a driver's license, permit, or ID card in accordance with § 46.2-328.1, but who has subsequently become subject to removal or deportation proceedings, other than to require such individual, when application for a renewal, duplicate or reissue of the license, permit, or ID card is made to the Department, to provide again documentary evidence of lawful status, provided that the Department has been notified by a government agency that the individual is not legally in the United States. Finally, it is my opinion that § 46.2-328.1 is designed solely to require documentary evidence of lawful status in the United States at the time of application for a driver's license, permit, or ID card, and that there is no authority under § 46.2-328.1 for the Department to cancel a driver's license, permit, or ID card once it is issued in accordance with § 46.2-328.1, even if the individual has been deported.

Background

The General Assembly enacted § 46.2-328.1 in 2003, to become effective January 1, 2004. In anticipation of the law's implementation, the Department created a list of documents it determined would be acceptable documentary evidence of lawful status in the United States as required by § 46.2-328.1, which provided then, and provides today, that:

A. [T]he Department shall not issue an original license, permit, or special identification card to any applicant who has not presented to the Department, with the application, valid documentary evidence that the applicant is either (i) a citizen of the United States, (ii) a legal permanent resident of the United States, or (iii) a conditional resident alien of the United States.

B. Notwithstanding the provisions of subsection A and the provisions of §§ 46.2-330 and 46.2-345, an applicant who presents in person valid documentary evidence of (i) a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States, (ii) a pending or approved application for asylum in the United States, (iii) entry into the United States in refugee status, (iv) a pending or approved application for temporary protected status in the United States, (v) approved deferred action status, or (vi) a pending application for adjustment of status to legal permanent residence status or conditional resident status, may be issued a temporary license, permit, or special identification card. Such temporary license, permit, or special identification card shall be valid only during the period of time of the applicant's authorized stay in the United States or if there is no definite end to the period of authorized stay a period of one year....

Among the documents on that original list of documents the Department determined should be acceptable as evidence of lawful status was the Employment Authorization Document. The EAD remained on the Department's list of acceptable documents (which is posted on the Department's website as part of form "DMV 141") until September of 2010, when it was temporarily removed from the list. The Department took this action based on information it received indicating that the EAD might not be trustworthy evidence of lawful status in the United States.

The purpose of the EAD, popularly known as a "work permit," is to provide evidence to employers that the holder is authorized by the United States Citizenship and Immigration Services ("USCIS") to work in the United States.

Applicable Law and Discussion

It should be noted that § 46.2-328.1 nowhere states what documents should be considered "valid documentary evidence" for purposes of establishing citizenship or lawful residency. Because of the lack of guidance in the statute, it is my opinion that the Department, of necessity, must first determine which documents should be considered acceptable as evidence of lawful status as provided in § 46.2-328.1. So long as the Department's determinations were reasonably related to the purpose for which the statute was enacted and were not in conflict with other laws, those determinations would be considered a valid exercise of that authority.

It also should be noted that at the time § 46.2-328.1 was enacted, there were few, if any, other states that required documentary evidence of lawful status in the United States in order to obtain a driver's license or ID card. The Department, therefore, had little or no guidance as to what documents might have been considered acceptable in other jurisdictions. In 2003, the Department evidently had little reason to suspect that the EAD was not trustworthy evidence of lawful status in the United States, and so its policy of accepting the EAD for that purpose was reasonable and within the authority granted to the Department pursuant to § 46.2-328.1.

The Department similarly has the authority to refuse to accept this document as evidence of lawful status in the United States as required by § 46.2-328.1, particularly when it concludes that the EAD does not provide trustworthy evidence of lawful presence in the United States. This conclusion is supported by a decision of the United States District Court for the Eastern District of Virginia. In addressing whether one of the plaintiffs had standing, the Court held that the plaintiff did not have standing to bring the suit because he was an illegal alien with no lawful status in the United States, even though he had a valid EAD. The EAD had been issued to him after he had filed for a special rule cancellation of removal under 8 C.F.R. § 240.66(a). The court held that:

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.

... because [the plaintiff] is removable from the United States and is not in a period of stay authorized by the Attorney General, [the plaintiff] is an illegal alien under federal law.

The Department, acting within its authority to accept reliable documentation of lawful presence, could, like the United States District Court, conclude that an EAD will not always be evidence of lawful status in the United States. Consistent with this decision, the United States Department of Homeland Security, in regulations adopted in 2008, likewise has indicated that the EAD should not be considered, by itself, as evidence of lawful status in the United States.

Accordingly, it is my opinion that the Department, having reasonably determined in 2003 that the EAD would be acceptable as documentary evidence of lawful status in the United States, retains authority to revisit that determination. If it now concludes that the EAD is not reliable evidence of lawful status in the United States, the Department reasonably may determine that the EAD, by itself, will not be acceptable as documentary evidence pursuant to § 46.2-328.1. In that regard, it should be noted that the EAD may sometimes be an indicator of lawful status in the United States; but that is not its primary purpose as a document. Any person who holds an EAD and who is also in a lawful status as provided in § 46.2-328.1 should be able to produce other documentary evidence of that lawful status in addition to the EAD. The Department continues to list a significant number of documents on its website that it continues to consider acceptable and which should be available to an applicant who actually is lawfully present in the United States.

As to your second and third inquiries, § 46.2-328.1 was enacted solely as a requirement that the individual provide valid documentary evidence of lawful status in the United States at the time of application for a driver's license, permit or ID card. The only sanction for failing to provide appropriate documentation is that no such driver's license, permit or ID card will be issued to the applicant by the Department. There is nothing in § 46.2-328.1, or elsewhere in the Code, that requires the individual to retain lawful status at all times during the validity period of a driver's license, permit, or ID card. The Code does not authorize the Department to impose any sanction for failure to maintain lawful status during the validity period of a driver's license, permit, or ID card lawfully issued pursuant to § 46.2-328.1. A change in the Code would be required to provide the DMV with such authority. The Code does require, in situations where the Department has been notified by a government agency that the applicant is not legally in the United States, that the person again show valid documentary evidence of lawful status in the United States upon application for renewal or the issuance of a duplicate or reissued driver's license, permit or ID card (and that the application be denied if he is unable to present such evidence). Aside from that provision, nothing authorizes the Department to cancel a driver's license, permit, or ID card on the ground that the person is in removal or deportation proceedings, or even if he has been deported.

Conclusion

Accordingly, it is my opinion that the Department has authority to accept or to refuse to accept an Employment Authorization Document, standing alone, as documentary evidence of lawful status as required by § 46.2-328.1. It is further my opinion that the Department is not authorized to take any steps with regard to an individual who has been issued a driver's license, permit, or ID card in accordance with § 46.2-328.1, but who has subsequently become subject to removal or deportation proceedings, other than to require that individual, when application for a renewal, duplicate or reissue of the driver's license, permit or ID card is made to the Department, to again provide documentary evidence of lawful status, provided that the Department has been notified by a government agency that the individual is not legally in the United States. Finally, it is my opinion that § 46.2-328.1 is designed solely to require documentary evidence of lawful status in the United States at the time of application for a driver's license, permit, or ID card, and that there is no authority under § 46.2-328.1 for the Department to cancel a driver's license, permit or ID card once it is issued in accordance with § 46.2-328.1, even if the individual has been deported.

With warmest regards, I am

Kenneth T. Cuccinelli, II
Attorney General