FMCSA is a federal agency within the Department of Transportation that is responsible for regulating the trucking industry in the United States. The new interpretation requires foreign nationals to demonstrate lawful permanent residence in the U.S. or be eligible under paragraph (f) of section 383.71 to obtain a U.S. CDL. This interpretation is a departure from many states’ longstanding practice of issuing CDLs to foreign nationals who were not LPRs but could document lawful immigration status or employment authorization in the U.S. As a result, foreign national commercial drivers who are not permanent residents have been unable to renew their CDLs or have been denied an initial CDL. This has predominantly negatively impacted Mexican and Canadian nationals.

Those who are domiciled in the U.S. are required to prove U.S. citizenship or lawful permanent resident status when initially applying for or renewing a CDL. 49 CFR §383.71(b)(9) and §383.71(d)(5). Those who are domiciled outside the U.S. may obtain a U.S. CDL if FMCSA has NOT certified the home country’s licensure requirements. 8 CFR §383.23(b) and §383.71(f). An applicant domiciled in a foreign jurisdiction must provide an unexpired employment authorization document (EAD) issued by USCIS or an unexpired passport accompanied by an I-94 documenting the applicant’s most recent admission into the U.S. No proof of domicile is required. 49 CFR §383.71(f)(2)(i).

FMCSA has issued agency guidance stating that Canadian and Mexican residents working in the U.S. with “temporary work visas” must obtain CDLs from their respective home countries, apparently because these individuals are assumed to have maintained a foreign domicile. Specifically, the FMCSA guidance states:

Question: May a foreign driver with a temporary work visa obtain a commercial driver’s license to operate a commercial motor vehicle in the U.S.?

Answer: A foreign driver holding a temporary work visa may obtain a non-resident CDL if he/she is domiciled in a foreign jurisdiction that does not test drivers and issue commercial licenses under standards equivalent to those in subparts F, G, H of part 383. However, drivers from Canada and Mexico with temporary work visas are not eligible for nonresident CDLs because FMCSA has determined that commercial licenses issued by Canadian provinces and territories and the U.S. Mexican States are in in accordance with U.S. rules.

In their current form, the regulations should only impact Mexican and Canadian nationals. If domiciled in a foreign jurisdiction, non-LPRs should be able to obtain a non-domiciled CDL if they can show an EAD or an unexpired passport with “an approved I-94 documenting the applicant’s most recent admittance into the U.S.” 49 CFR §383.71(f)(2)(i).

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