Key takeaways
- The final rule limits non-domiciled CDL eligibility and tightens verification requirements.
- FMCSA estimates that the rule will remove 194,000 non-domiciled CDL holders.
- The new rule came after FMCSA's previous emergency rule stalled under legal challenges.
The Federal Motor Carrier Safety Administration (FMCSA) is issuing a final rule to the Federal Register that limits access to non-domiciled commercial driver’s licenses (CDLs).
The rule will take effect 30 days after it is published in the Federal Register—March 13. The rule then gives state licensing agencies a further 30-day timeline to complete the downgrade. The change will likely be in full effect around April 13.
The final rule tightens access to non-domiciled CDLs by limiting the kinds of foreigners eligible for the license, limiting the documents eligible to apply for the licenses, and tightening states' required verification processes.
FMCSA estimates that the rule will drastically reduce the number of non-domiciled CDL holders from 200,000 today to only 6,000 in a few years.
Limited eligibility categories
The rule limits the kinds of foreigners eligible for non-domiciled CDLs to only H-2A and H-2B temporary worker visas and E-2 non-immigrant status holders. FMCSA explained that “these individuals are subjected to increased vetting, which provides a more equivalent history check to those encountered by domestic CDL applicants.”
Both H-2 visas are for temporary employment and require that the employer demonstrate there are not enough U.S. workers to do the temporary work and that the H-2 workers will not adversely affect U.S. workers’ conditions. The E-2 classification is for people from treaty countries who are investing a substantial amount of capital in a U.S. business.
No more employment authorization documents
Licensing agencies have historically accepted employment authorization documents (EADs), but the new rule no longer accepts EADs as proof of eligibility.
Applicants for non-domiciled CDLs will instead need to present an unexpired foreign passport and appropriate Form I-94 documentation.
Mandatory alien verification system queries
The rule requires state licensing agencies to query the Systematic Alien Verification for Entitlements (SAVE) system to confirm every applicant’s lawful immigration status.
Annual renewals for non-domiciled CDLs
Non-domiciled CDL drivers will be required to renew their license in person every year. Previously, some drivers could renew online or through the mail, with expiration dates sometimes stretching up to five years.
The fate of FMCSA’s previous non-domiciled rule
In September, FMCSA issued an emergency interim final rule to immediately limit states’ authority to issue or renew non-domiciled CDLs.
But the rule did not stay for long: The Court of Appeals had ordered a pause to FMCSA’s emergency rule. A legal challenge (Rivera Lujan, et al v. FMCSA) convinced the court that it would likely succeed in its arguments against the rule.
The petitioners made numerous arguments that swayed the court, including:
- FMCSA did not conduct a required “consultation with the states” for the rule.
- The final rule lacked a strong enough justification. Tightening CDL issuance—and, more radically, bypassing the notice-and-comment period—would require more rigorous proof of good safety outcomes.
The court notably observed that, “according to FMCSA’s own data, non-domiciled CDL holders account for approximately 5% of all CDL holders but only about 0.2% of fatal crashes.”
Is the new non-domiciled rule here to stay?
The agency had tried to restrict non-domiciled CDLs a few months prior but was shot down by legal challenges. Is this rule going to meet the same fate? FMCSA’s new rule seems to satisfy the requirements of the arguments raised by Lujan, et al. The changes may make it more likely to succeed in legal challenges:
- The agency, this time, held an open comment period and facilitated discussions with state licensing agencies before issuing a final rule.
- The agency also provides a different justification for the rule. Instead of arguing that non-domiciled CDLs are less safe, the agency argues that past driving behavior is a significant factor in crash risk—and that vetting past driving records would improve safety outcomes.
About the Author
Jeremy Wolfe
Editor
Editor Jeremy Wolfe joined the FleetOwner team in February 2024. He graduated from the University of Wisconsin-Stevens Point with majors in English and Philosophy. He previously served as Editor for Endeavor Business Media's Water Group publications.