The Federal Motor Carrier Safety Administration moved swiftly to issue a final rule limiting non-domiciled commercial driver’s licenses after a legal challenge put an emergency version of the rule on pause last fall.
Non-domiciled CDLs are issued to people who are legally allowed to work in the U.S. but do not permanently live in the state issuing the license. This is often foreign nationals working under temporary U.S. work authorization. However, FMCSA said it found major problems with states issuing these licenses improperly and said it leads to unsafe drivers on the road.
In the September emergency rule, FMCSA limited non-domiciled CDL eligibility to individuals on H-2A, H-2B, or E-2 visas. It excluded other categories such as asylum seekers, refugees, and Deferred Action for Childhood Arrivals (DACA) recipients, who previously were eligible for non-domiciled CDLs.
The rule was challenged in court because it did not go through the legally required rulemaking process. The U.S. Court of Appeals for the D.C. Circuit temporarily stayed the rule in a November 10 order.
Since then, FMCSA has continued to pressure states it said were flagrantly ignoring the previous non-domiciled CDL rules.
Did the FMCSA Make Changes in its Revised Non-Domiciled CDL Rule?
There were about 8,000 comments on that IFR, but in issuing its final rule, FMCSA said it reaffirms the emergency rule with only minor changes.
“This final rule closes a critical safety gap in the nation’s commercial drivers licensing system that has manifested in two ways,” FMCSA said:
- The issuance of licenses to individuals whose safety fitness cannot be adequately verified by state driver licensing agencies.
- The reliance on Employment Authorization Documents to demonstrate eligibility for a non-domiciled CDL, which has proven administratively unworkable and resulted in widespread regulatory non-compliance.
As Trucksafe Consulting’s Brandon Wiseman explained, the September emergency rule restricted non-domiciled CDL eligibility to foreign-domiciled holders of H-2A, H-2B, or E-2 statuses, requiring proof through an unexpired foreign passport with I-94. SDLAs were mandated to:
- Limit credential validity to the immigration document’s expiration (maximum one year, renewable with renewed proof).
- Verify statuses using the Systematic Alien Verification for Entitlements (SAVE) system.
- Retain document copies and SAVE queries for at least two years, producible within 48 hours upon FMCSA request.
- Downgrade credentials if eligibility lapses.
In those thousands of comments, groups such as the Owner-Operator Independent Drivers Association and the American Trucking Associations praised the rule for improving safety and reducing fraud.
Critics argued that it was discriminatory, would shrink the pool of truck drivers, was not backed up by strong data, and overlooked alternatives such as enhanced SAVE checks.
But in the end, the only changes to the rule involved clarity, such as removing redundant text and refining document verification and retention.
Details of the New Rule
Effective March 15, the new final non-domiciled CDL rule applies to state licensing agencies issuing non-domiciled credentials:
- Eligibility: Restricted to H-2A, H-2B, or E-2 holders; proof via passport/I-94.
- Validity and Renewal: Matches immigration documents (≤1 year); renewable with updated proof.
- Verification and Records: SDLAs must use SAVE, retain documents/SAVE queries for two years, and respond to FMCSA requests within 48 hours.
- Downgrades: Required if status changes; no new driver notification system.
What Will the Effect be on Trucking Fleets?
Brandon Wiseman of Trucksafe Consulting said in a blog post, “For fleets, the immediate impact may not be overly dramatic, but important to consider.”
One notable change, he said, was FMCSA’s economic analysis. In the interim rule, the agency assumed that most non-domiciled CDLs had relatively short validity periods. But after auditing state records, the FMCSA concluded that most properly issued non-domiciled CDLs had expiration dates of up to 5 years.
Instead of a sudden loss of around 194,000 drivers, FMCSA concluded that any reduction in the non-domiciled driver population would occur gradually as licenses expire and are not renewed under the new eligibility standards.
So even though the rule could eventually affect hundreds of thousands of non-domiciled CDL holders, the impact will be spread over several years rather than all at once.
