Driving in California - A warning to all you non-resident newlyweds.

[bobzurunkel 1]

Crossposted here for all my fellow Canadians:

Hi VJ'ers!

Mini timeline:

Entered US on 1-10-2009

Married 3-24-2009

SSN received 3-10-2009

I-94 Expired 4-09-2009

AOS filed 4-24-2009

The Short Version:

Illegal under California Law: Marrying an American, filing I-485 adjustment of status, staying at your US citizen spouse's California residence while awaiting approval/denial of AOS and driving using a Canadian license while there since you cannot obtain a CA license.

Legal under California Law: Marrying an American, filing I-485 adjustment of status, driving back and forth between Las Vegas, NV and your spouse's California residence every 10 days or less awaiting approval/denial of AOS using a Canadian license since you cannot obtain a CA license.

The Long Version:

On 4-25-2009, while driving my wife's car, I was pulled over by the Burbank, CA PD for failing to yield to a pedestrian at a crosswalk.

I presented the officer with my Canadian license, valid until 2013. He then asked me where I was living and I gave him my address in Burbank. He followed by asking me how long I've been here in California and I told him since 1-10-2009. He then issued me a ticket for violating 12500(a) of the California Vehicle Code, driving without a valid CA driver license. He told me that if I'm living here in CA, I'm considered a CA resident and must get myself a CA license within 10 days of arrival. The charge is a criminal misdemeanor, mandatory court appearance and will be on my permanent record if I am convicted.

I then argued with the officer regarding my residency status, I had just filed the AOS the day prior and I told him that I'm technically a non-resident "gray-area" alien since the AOS was just filed and my I-94 had already expired. I explained to him that I am still a Canadian resident, I have a bank account, health bills, credit cards, a company of my own up there... I explained to him that I have no intention, and more importantly no legal right, to stay anywhere in the USA unless my I-485 application is approved for US residency.

I further explained to him I had read on the California DMV site that I didn't require a California license until my California residency had been established... That I couldn't even attempt to get one until I had residency confirmed with the proper DHS document and a valid SSN. My interpretation of what it says in the CA Driver's Handbook was that until such time as CA residency is established, I'd be able to drive with my valid Canadian drivers license. The cop told me that he wasn't going to argue about it with me and to take it up with the judge and that I should feel lucky he didn't impound the vehicle for 30-days, as is his right to do under the law with 12500(a) CVC. I took the ticket, thanked him and told him to have a nice day (It was the first time I had lied to him as I secretly wished for him to die in a fire as soon as possible).

After looking up the relevant sections of the law here back at the love shack, my residency status certainly seems to be the crux of the matter. Section 12500 CVC refers to section 12502 CVC as I'm a non-resident driver and 12505 CVC defines what a California resident is, specifically with regard to driver licensing. Basically, it says that if you so much as have the INTENT alone to remain in California with any sort of permanency, if your stay in California is anything other than "temporary or transient", you ARE a California resident and must have a license to drive 10 days post arrival to the state.

A few days later I received my I-797C NOA1 for my AOS/AP/EAD submission. I had read on the DMV site that they accept I-797 NOA's as proof of legal status and that the 12500a CVC charge is usually dismissed for first time offenders if you come to traffic court and produce a newly received valid CA license. Excited that I might have an easy out here, I made an appointment with the DMV for May 7th. The supervisor at the DMV called Sacramento headquarters to confirm, and he then told me they only accept the I-797 APPROVED I-485 NOA. They would not even allow me to file the DL44 new application form. He also said it would not have been possible to receive a license prior to that because my I-94 expired less than 30 days after receiving my SSN and that any license they would have issued to me would have only been valid to the expiry date of the I-94. I showed the DMV supervisor what it said in their handbook with regards to driving with a foreign license while a visitor in California and asked if my case applied. He was reluctant to make any call on that and told me to call the Burbank PD again and confirm with them as they're the ones that do the enforcing.

So, I called the Burbank PD explaining all this again and to ask whether or not I could drive with my Canadian license or not while this was all pending, and/or before/after any conviction/dismissal. I was told by another traffic officer on the phone that as far as they're concerned, if I'm living here in CA then I'm a California resident, "case closed." He said it doesn't matter what the DMV said or even wrote in their handbook. He then added that he "found it pretty funny" that I'm claiming innocence on 12500a CVC due to non-residency on one hand while I'm living here with my wife and applying for US residency on the other. Grrrrrrrrrrrrrrr... I wanted to scream. Anyway, the cop said even if the charge was dismissed I'd get cited again with 12500(a) CVC as that's any Burbank road cops interpretation.

My interpretation of all this is markedly different:

Obviously US residency and California residency are two separate animals, but really, c'mon... How can one be considered a lawful legal resident of a state when they are considered a non-resident alien by the union? That's retarded.

Marrying a US citizen and staying with her while applying for US residency should NOT automagically mean i've become a California resident. The law here is pretty loosey goosey as to what establishes California residency, but I consider my stay here in California is of a "temporary or transient nature" because I'm not working here in California, I do not own property here or pay rent on a lease, property taxes, or anything else listed in the DMV handbook or section 12505 defining residency (Which is intentionally, and wickedly broad in its definitions). More importantly, I continue to maintain my Canadian residency and I have the intent to return to Canada if my I-485 application is denied for any reason. I have no choice in the matter actually, just as I have no choice but to be forced to stay in the USA while my I-485 is being processed, or at least until I receive advance parole.

Nice, what a frustrating system.

Trying to explain all of this to a cop, it's in one ear out the other and a complete waste of time. I've got to appear in court by May 26th, does anyone have any suggestions as to how to present all this to the court or even a prosecutor before hand concisely so I can get this charge dismissed? I already realize that I can get my license once I can present my EAD.

Here's the relevant laws and info in case anyone's interested in reading the details and wants to come to their own interpretation:

California Vehicle Code:

12500 - Unlawful to Drive Unless Licensed

12502 - Non Resident Drivers

12505 - Establishing Residency

What the California DMV Website/Driver's Handbook specifically has to say regarding residency and visiting drivers:

New Residents

When you become a resident and you want to drive in California, you must apply for a California driver license within 10 days.

Residency is established by: voting in California elections; paying resident tuition at a California college or university; filing for a home owner’s property tax exemption; obtaining a license; or receiving any other privilege or benefit not ordinarily extended to nonresidents.

Adults Visiting California

Visitors over 18 years old with a valid driver license from their home state or country may drive in California without getting a driver license as long as their home state license remains valid.

[Otto 83]

Part of the problem is that the Police aren't qualified to determine (exactly) what is legal and what isn't. (In other words they can simply enforce what they know and debating the law with them is - as you found out - pretty much a waste of everyone's time.)

We had a friend in Texas that received a violation/ticket for no TX DL (he explained pretty much what you probably did and it fell on deaf ears.)

He went to court and the judge dismissed the violation (the speeding ticket was a different story).

[KristinL 0]

Part of the problem is that the Police aren't qualified to determine (exactly) what is legal and what isn't. (In other words they can simply enforce what they know and debating the law with them is - as you found out - pretty much a waste of everyone's time.)

We had a friend in Texas that received a violation/ticket for no TX DL (he explained pretty much what you probably did and it fell on deaf ears.)

He went to court and the judge dismissed the violation (the speeding ticket was a different story).

Exactly! You're barking up the wrong tree. Go to court and contest the violation. Bring your immigration documents with you. It will probably be dropped.

[Texanadian 10]

Federal rules trump state rules......."Technically" you're a non immigrant since you're a K-1. And a non immigrant doesn't have INTENT to stay in the country. Only when the permanent resident is approved, you become a resident.

You can file as a non-resident alien on your IRS forms (if you want). You file as a resident of Canada until the end of the year you moved away. (Dec 31 2009 for you)

New residents are people from other US states. If Wayne Newton moved from Nevada to California, he would need a CA license in 10 days. We are obviously in a different scenario.

Canada drivers licenses are valid in 50 states.

Obviously Officer Fife can't figure this out on the road. Take it to court and let a competent judge figure it out. They love rules and procedures.

[warlord 73]

Federal rules trump state rules......."Technically" you're a non immigrant since you're a K-1. And a non immigrant doesn't have INTENT to stay in the country. Only when the permanent resident is approved, you become a resident.

You can file as a non-resident alien on your IRS forms (if you want). You file as a resident of Canada until the end of the year you moved away. (Dec 31 2009 for you)

New residents are people from other US states. If Wayne Newton moved from Nevada to California, he would need a CA license in 10 days. We are obviously in a different scenario.

Canada drivers licenses are valid in 50 states.

Obviously Officer Fife can't figure this out on the road. Take it to court and let a competent judge figure it out. They love rules and procedures.

Though filing for AOS is Intent to stay in the country which was filed.

I think a lot of states do this though now. You should still be able to get a licence with your current documents that you have (that got you into the US like the K-1 etc). Not 100% sure if California will allow that, but thought most if not all states reconize that? I could be wrong though...

[thetreble 19]

New Jersey doesn't. Again, I had to show them a green card or a 551 stamp in order to get a license. It's my understanding as well that while you aren't technically out of status, as I wasn't, the waiting for approval does leave you in a grey area. I was pulled over once while waiting for my green card to get approved. I was using my Ontario license. All I got was the ticket! However, I was driving my car and I looked like a visitor to him.

It will probably be excused at court once the judge understands it. I have police officer friends here in Jersey and t hey understand nothing about immigration procedure or law. Try not to get too hyped up about it.

[bobzurunkel 1]

Federal rules trump state rules......."Technically" you're a non immigrant since you're a K-1. And a non immigrant doesn't have INTENT to stay in the country. Only when the permanent resident is approved, you become a resident.

You can file as a non-resident alien on your IRS forms (if you want). You file as a resident of Canada until the end of the year you moved away. (Dec 31 2009 for you)

New residents are people from other US states. If Wayne Newton moved from Nevada to California, he would need a CA license in 10 days. We are obviously in a different scenario.

Canada drivers licenses are valid in 50 states.

Obviously Officer Fife can't figure this out on the road. Take it to court and let a competent judge figure it out. They love rules and procedures.

I wish this were that cut and dried, but it isn't. According to the cops, California residency and US residency are two entirely different things. They gave me an example, an illegal alien who has crossed the border from Mexico to work in California is considered a CA resident after 10 days under the California Vehicle Code despite the fact that they are in the United States illegally.

It's silly, but I really must prove now in court that I should not be considered a resident because of my ties to Canada and my uncertain I-485 application.

[bobzurunkel 1]

Though filing for AOS is Intent to stay in the country which was filed.

I think a lot of states do this though now. You should still be able to get a licence with your current documents that you have (that got you into the US like the K-1 etc). Not 100% sure if California will allow that, but thought most if not all states reconize that? I could be wrong though...

No, California won't allow it. Some here on the site say the DMV will give you a license once you can produce a 1-year employment authorization from the US, but I talked to a supervisor at the Glendale DMV, who sat on the phone with Sacramento head office to confirm, who told me that the next proof of legal presence they'd accept is a I-797 Notice of Action Approved Petition for I-485.

I really hope that isn't the case.

[bobzurunkel 1]

Try not to get too hyped up about it.

LOL, easy for you to say... This isn't a parking ticket I'm facing, it's a criminal misdemeanor... Permanent record stuff.

[thetreble 19]

Try not to get too hyped up about it.

LOL, easy for you to say... This isn't a parking ticket I'm facing, it's a criminal misdemeanor... Permanent record stuff.

It is easy for me to say actually because if you are that concerned, then hire a lawyer.

[TimandJoyce 1]

Hope everything works out for you! Tim is good friends with one of the city cops, and when I met him we talked about licenses, that I'd have to do my test and all...he says to me...."Nahhhh don't go through all that...if you get stopped, tell 'em you've only been here 3 days!".... Course...he WAS only kidding!!!

I drove while I was down there in April, as I was just a visitor. Not sure I'll drive until I have a state license.

[thetreble 19]

Yeah see I would have just said I was a visitor. They have no information that you are or that you aren't. I would have said I was down visiting and driving my gfs car but...guess it's too late for that.

[Killer_Clown_2009 0]

It'll be interesting to see what happens in court. I have been in the US since 2005, driving with my Ontario license with no issues. I just got my MA license this month as the Ontario one had expired. They didn't even ask to see my green card. I was stopped for speeding once, but the officer didn't care that I was using my Ontario license, he just warned me for speeding and let me go.

Edited May 15, 2009 by jane2005

[thetreble 19]

It'll be interesting to see what happens in court. I have been in the US since 2005, driving with my Ontario license with no issues. I just got my MA license this month as the Ontario one had expired. They didn't even ask to see my green card. I was stopped for speeding once, but the officer didn't care that I was using my Ontario license, he just warned me for speeding and let me go.

Really?

Because here in New Jersey it's against the law to drive a car with NJ plates and be using another state's or provinces driver's license. Your plate origin must match your license origin if you are a resident.

[JimVaPhuong 4,863]

Federal rules trump state rules......."Technically" you're a non immigrant since you're a K-1. And a non immigrant doesn't have INTENT to stay in the country. Only when the permanent resident is approved, you become a resident.

I believe you're referring to the oft quoted reference that federal LAW trumps state LAW, which is generally true. However, federal DEFINITIONS do not trump state DEFINITIONS when it comes to interpreting the laws. Federal definitions apply to interpreting federal law, and state definitions apply to interpreting state law. I was commenting yesterday in a thread where someone had a problem because his state (Texas, as it happens) did not consider him to have a conviction on his criminal record, but USCIS clearly DID consider him to have a conviction. In fact, his exact situation was described in the USCIS handbook as a conviction.

Obviously Officer Fife can't figure this out on the road. Take it to court and let a competent judge figure it out. They love rules and procedures.

This I agree with completely. Traffic cops are generally aware of traffic law, but they may have no clue about immigration law. Traffic cops frequently issue citations when no law has been violated. There's no point arguing with the cop. Sign the ticket, say thank you with a smile, and prepare for your day in court.

An additional problem here is that the judge will be a traffic court judge. He may not know much more about immigration law than the traffic cop. Fortunately, California is a state with a large immigrant population, so there's a good chance the judge will at least have dealt with these situations before. Just to be on the safe side, read the California codes and know what your position is when you go to court. Be prepared to cite the specific codes to the judge, and have your arguments summarized (including California code citations) on a short document you can give to the judge. This way, if he isn't sure what to do, he can adjourn for a few minutes while he goes to his chambers and reviews your arguments, and reads the relevant code sections.

It won't do any good to argue that federal immigration law doesn't define you as a "resident". As I noted above, the federal definition isn't what counts when interpreting state law. You have to convince the judge that you have a legal right to drive under California law. Only refer to federal law if the California code specifically refers to it.

In the worst case, you might end up having to accept that you can't drive until you get a California license. That's what foreign spouses from most other countries end up having to deal with.