On May 3, 2023, the Department of Homeland Security (DHS) will begin enforcing the 2005 Real ID Act. After nearly fifteen years of delays, all driver’s licenses and state identification documents (ID) used to board domestic commercial airplanes will need to comply with Real ID requirements. Since obtaining a Real ID requires proof of citizenship or legal immigration status, many undocumented immigrants may soon be unable to fly.
Real ID originated from the aftermath of 9/11. Prior to the attacks, Virginia state law allowed almost anyone to swear to a person’s state residency for the purpose of acquiring state identification. No bills, leases, or other documentation of residency—nor any passport or other identity documents—was required. According to the FBI, three of the 9/11 hijackers paid strangers to swear to their residency to illegally obtain state IDs from the Virginia Department of Motor Vehicles (DMV) and are believed to have used these IDs to check-in to the flights they hijacked. The 9/11 Commission recommended the federal government “set standards for the issuance of birth certificates and sources of identification, such as drivers licenses.”
In 2005, the Real ID Act was passed as part of a defense spending bill. It set new standards for driver’s licenses and state ID cards to be accepted as sufficient identification at nuclear power plants, certain federal facilities, and Transportation Security Administration (TSA) security checkpoints in airports. These standards include documentation showing proof of identity, U.S. citizenship or lawful status, and two proofs of address of principal residence.
The Act does not prohibit state DMVs from continuing to issue driver licenses and state IDs that are not compliant with Real ID standards—but starting next May, these non-compliant licenses and cards will not be accepted for the purpose of boarding flights. The State of Illinois will continue to issue non-compliant licenses and identification cards which do not require proof of lawful status to be obtained, but these will not be accepted by the TSA for boarding commercial aircraft. The TSA website lists alternative forms of identification its officers will accept, such as U.S. and foreign passports.
The DHS has specifically stated that no conclusions about a license-holder’s immigration status should be drawn from the holding of a non-compliant license or card. Recipients of Deferred Action for Childhood Arrivals (DACA) are eligible for Real ID licenses and identification cards in most states, including Illinois.
The Real ID Act was originally supposed to be implemented in 2008, but the DHS has delayed beginning enforcement multiple times. Since Real ID’s passage, the American Civil Liberties Union (ACLU) has advocated for Real ID’s repeal and for delaying its implementation.
“Shortly after Real ID was passed, we went to the Illinois House [of Representatives] and got them to pass a resolution calling on Congress to repeal the measure and calling on the Secretary of State not to implement it in the state of Illinois,” said Ed Yohnka, Director of Communications and Public Policy for the ACLU of Illinois. “Secretary White’s office resisted candidly implementing it for as long as they possibly could.”
Yohnka and other advocates at the ACLU of Illinois saw that state legislators and the Office of the Illinois Secretary of State found arguments concerning the cost of Real ID’s implementation more compelling than arguments about privacy, tracking, and equity. In 2008, the DHS estimated Real ID’s implementation would have a cost of $9.9 billion—$3.9 billion of which would be covered by states and $5.8 billion of which would be borne by individuals.
The Real ID Act also requires that states do not issue licenses to individuals with valid licenses from other states; individuals must confirm they have terminated, or are terminating, their other license so as not to hold more than one at a time. To implement this measure, the American Association of Motor Vehicle Administrators (AAMVA), a nonprofit organization, has developed the State-to-State (S2S) Verification Service for the DHS to allow states to provide other states access to their motor vehicle database. According to the National Immigration Law Center, S2S includes “a central database that contains personal information about drivers, including the last five digits of their Social Security numbers and whether they have a REAL ID–compliant license.”
The NILC believes that this raises concerns for states that have sought to limit the DHS’s access to their databases of drivers’ information. Yohnka worries this database could be a “goldmine for identity thieves.” The ACLU and Illinois policymakers fear that, regardless of the quality of Illinois’s cybersecurity of its state database, this S2S central database could allow hackers to access the personal information of Illinois drivers through states with less robust cybersecurity measures.
With these budgetary and cybersecurity concerns in mind, Yohnka says Illinois officials came to a “bipartisan understanding” and delayed moving into Real ID compliance for “as long as possible.”
“I largely credit the folks at the Secretary of State’s Office, who I think had all of those concerns and more,” Yohnka said. “Even when they would make budget requests to implement it, they would not always expend that money until they literally had to.”
After over a decade of Illinois dragging its feet, the DHS eventually certified that Illinois was in compliance with Real ID in 2019. The last three states to be certified as compliant were New Jersey, Oklahoma, and Oregon in 2020. In March 2020, the enforcement deadline was extended due to the pandemic, and in May 2021 President Joe Biden’s administration moved it back again to 2023.
Besides the ACLU, the National Immigration Law Center (NILC) has also worked on the intersection of Real ID implementation and the rights of immigrants by publishing fact sheets and legal documents for use by immigrants and immigration lawyers alike. The NILC advises “undocumented individuals, including those whose DACA has expired, to seek advice from a qualified immigration attorney before traveling by air.”
An immigration lawyer and advocate interviewed on the condition of anonymity said that they advise all undocumented immigrants seek legal counsel before flying now—before the May 2023 enforcement of Real ID—as well as after its implementation. Yohnka agreed with this advice.
The City of Chicago recently launched the City Key program to increase access to government-issued ID cards. Undocumented immigrants can acquire City Keys, which establishes proof of identity in the City of Chicago and can be used for opening a bank account at participating financial institutions, donating blood, renting apartments, applying for building permits, saving money on medical prescriptions, riding the CTA, and more. However, the City Key is not Real ID-compliant and is not accepted by the TSA as a valid form of identification for boarding commercial aircraft.
For undocumented immigrants unable to obtain a Real ID-compliant license or ID and without another form of identification accepted by the TSA, it may become impossible to fly domestically after May 3.
After so many years of pushing back the date of Real ID implementation, Yohnka hasn’t abandoned all hope the DHS could delay it again. “A couple of times I thought we were for real, and then it got pushed back,” Yohnka said. “I’m not gonna bet against it.”
Devin Haas is a journalist based in St. Louis and Cambridge, UK covering migration, human rights, and policy.