Illinois’ Temporary Visitor Driver’s License: An acceptable I-9 document?

In response to the concern of unlicensed and uninsured drivers on the road, Illinois enacted legislation in 2013 authorizing the Illinois Secretary of State to issue Temporary Visitor’s Driver’s Licenses (TVDL) to applicants who meet certain requirements. Under the statute, TVDL applicants must be ineligible for a social security number. TVDLs are also available to applicants who are unable to present documentation issued by the United States Citizenship and Immigration Services authorizing the applicant’s presence in the country.

A TVDL authorizes a holder to drive in Illinois, provided the driver maintains liability insurance. However, a TVDL is “not to be accepted for proof of the holder’s identity.”  Indeed, the face of the TVDL conspicuously states NOT VALID FOR IDENTIFICATION. This odd contradiction creates a conundrum for the employer looking to verify an employee’s authority to work in the United States.

Federal law requires employers to only hire individuals who may legally work in the United States: U.S. citizens, noncitizen nationals, lawful permanent residents and aliens authorized to work. Failure to verify eligibility could lead to sanctions against the employer. To ensure eligibility, employers must complete and retain a Form I-9—Employment Eligibility Verification form—for all new hires after Nov. 6, 1986. And employers are prohibited from discriminating against individuals on the basis of national origin or citizenship.

Form I-9 requires new hires to provide documentation to verify the prospective employee’s eligibility. Within three days of employment, the employee must provide original documents that show their identity and employment authorization. An employer must accept documents that reasonably appear on their face to be genuine and relate to the person presenting them. The employee chooses which documents from either List A (one document) or a combination of a List B and a List C document (two documents) to produce. List B documents – Documents That Establish Identity – include a:

Driver’s license or ID card issued by a State or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.

The TVDL is a driver’s license issued by the State of Illinois and contains the holder’s name, date of birth, gender, height, eye color and address. However, TVDLs are, according to the very statute that authorized their issuance, not a valid form of identification. To complicate the process further for the verifying employer, much of the driving force behind the TVDL was to increase and promote liability coverage for Illinois drivers, even if they are not in the country legally. Indeed, a TVDL applicant must not be eligible for a social security number.

An employer faced with an employee providing a TVDL as an I-9, List B document could understandably be concerned with its nondiscriminatory verification obligations under federal law, on the one hand, and the legitimacy of a state-issued driver’s license on the other. While not an official statutory provision, the U.S. Citizenship and Immigration Service caused additional confusion when it posted an update on its website that states:

A state-issued temporary driver’s license is an acceptable Form I-9 List B document if it contains a photograph or identifying information such as name, date of birth, gender, height, eye color, and address. Any conditions on the temporary driver’s license, such as that the expired license must accompany the temporary driver’s license for it to be valid, must be followed. (Last Reviewed/Updated: 11/25/2014)

The only condition of the TVDL is that the holder has valid liability insurance. The update would suggest that a temporary driver’s license, subject to its own conditions, is an acceptable List B document. However, the TVDL plainly states on its face that it is NOT VALID FOR IDENTIFICATION. As identification is key to an I-9 review, the TVDL seemingly voids itself as an acceptable List B document even though it generally appears to meet the requirements.

An employer has a duty to verify the documentation being presented to it. However, employers are not required to rigorously analyze whether a TVDL suggests an applicant’s ineligibility to work in the United States. Rather, an employer must make a determination that documents being produced reasonably appear on their face to be genuine and related to the applicant. A State of Illinois issued TVDL, while perhaps genuine, is not a valid form of identification; it is for driving purposes in the State of Illinois only. While there appear to be no reported instances of an employer being sanctioned for accepting a TVDL as a valid List B document or any official stance on TVDLs espoused by U.S. Citizenship and Immigration Services, an employer should be cautioned not to accept a TVDL for I-9, List B purposes.

Contact a Chuhak & Tecson attorney for more information regarding employment verification obligations under the federal law.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Francisco E. Connell, Principal

This alert originally appeared in the Summer 2017 Corporate Focus Newsletter.