Texas is changing how foreign nationals establish identity for a driver license or identification card, and members of the public have until July 26, 2026, to comment on the proposed rule.

The Texas Department of Public Safety has begun taking the position that it will no longer accept a foreign passport containing an expired visa as a primary identity document for REAL ID purposes. DPS describes the change as necessary to align Texas requirements with the federal REAL ID regulation at 6 C.F.R. § 37.11.

Texas’s current rule, however, expressly permits a foreign passport containing a United States visa, “valid or expired,” when accompanied by an unexpired Form I-94 showing admission for a fixed period. DPS has now proposed amending 37 Texas Administrative Code § 15.24 to delete the words “or expired” and require the visa to remain valid.

The proposed amendment would turn the new DPS position into an express Texas rule. It would also create a serious licensing trap for people who are lawfully maintaining nonimmigrant status but whose visa stamps have expired.

Identity and Lawful Presence Are Separate Issues

It is important to separate two issues that DPS itself evaluates on different tracks: identity and lawful presence.

For lawful-presence purposes, an expired visa does not mean that a person’s authorized stay has ended. A visa stamp is primarily an entry document. Once a person has been admitted to the United States, the Form I-94 generally determines how long the person may remain. USCIS may also extend or change a person’s status and issue a new Form I-94 without issuing a new visa stamp.

Texas verifies lawful presence through the federal SAVE system. A current Form I-94, approval notice, or other federal immigration record may therefore confirm that an applicant remains lawfully present even though the visa stamp has expired.

The new restriction concerns identity, not lawful presence. Under the federal REAL ID regulation and the proposed Texas amendment, an expired visa in the passport would no longer help establish who the applicant is, even though the visa’s expiration has nothing to do with the applicant’s identity or continuing immigration status.

Why the Rule Creates a Documentary Dead End

Texas generally allows an applicant to establish identity through one of three paths: one primary identity document, two secondary identity documents, or one secondary identity document together with two supporting documents.

For most foreign nationals, only the first path is realistic.

The secondary documents are largely limited to records such as a United States or Canadian birth certificate, a Consular Report of Birth Abroad, or certain United States court orders. A foreign national born outside the United States or Canada ordinarily will not possess one of those documents. That closes off both the two-secondary-document path and the secondary-plus-supporting-document path before they begin.

For a nonimmigrant who is not a permanent resident and does not hold an Employment Authorization Document, the practical primary options may narrow to two: a foreign passport containing an unexpired visa and accompanied by a valid Form I-94, or a Texas driver license or identification card that has not been expired for more than two years.

Under the proposed rule, the first option disappears the moment the visa stamp expires. A foreign passport on its own counts only as a supporting document. A driver license from another state likewise counts only as a supporting document in Texas. Neither document can carry the application on its own.

A person may therefore have an unexpired passport, a current Form I-94, an approved Form I-797, a valid out-of-state driver license, a Social Security card, proof of Texas residence, and immigration status that can be independently confirmed through SAVE, yet still be unable to satisfy Texas’s identity-document formula.

Apply While the Visa Stamp Is Still Valid

For a visa holder who lives in Texas or expects to move to Texas, the most protective step is to apply for a Texas driver license or identification card while the visa stamp remains valid.

As long as the visa is unexpired, the passport, visa, and Form I-94 can still serve as a primary identity-document combination. This creates a limited window for entering the Texas licensing system.

Once issued, a Texas driver license or identification card can provide a durable bridge. A Texas credential that has not been expired for more than two years is itself a primary identity document. At a later renewal, the applicant can establish identity using the Texas card rather than relying on the passport and visa combination, even if the visa stamp has expired in the meantime.

Lawful presence would still be verified separately through SAVE. The key is to renew the Texas credential on time, because once it has been expired for more than two years, it drops to a supporting document and the bridge may be lost.

People Moving to Texas Face the Greatest Risk

The people most exposed are those who move to Texas after their visa stamps have already expired.

Consider a professional who lawfully entered the United States on a valid visa, lived and worked in another state, received an extension of status from USCIS, and later relocated to Texas for a new position.

That person may have a valid passport, a current Form I-94, an approved immigration petition, and a valid driver license from the prior state. Yet in Texas, the out-of-state license may count only as a supporting document, the passport alone may count only as a supporting document, and the applicant may have no qualifying secondary document.

Without an Employment Authorization Document or a new visa stamp, that person may find it impossible to establish identity for a Texas driver license even though identity and lawful presence are not genuinely in question.

If an applicant is already in that position, the theoretical options are to use another qualifying primary document, obtain an Employment Authorization Document if the immigration category permits one, or obtain a new visa stamp during international travel.

None of these are practical solutions for most affected applicants. Many nonimmigrants are not eligible for an Employment Authorization Document, few will possess another qualifying primary document, and international travel solely to obtain a visa stamp can be costly, disruptive, and risky. In practice, a lawfully present person may be left with no workable path to a Texas driver license despite having a valid passport, current immigration status, and identity records that the government can independently verify.

The REAL ID Regulation Is the Underlying Problem

The federal REAL ID statute is arguably broader than the implementing regulation. It recognizes a person who “has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States.”

The word “or” is important. Congress separately referred to possession of a valid visa and possession of valid nonimmigrant status.

That language supports allowing an applicant to present an unexpired foreign passport together with current, SAVE-verifiable evidence of nonimmigrant status, such as a valid Form I-94 or a Form I-797 containing an I-94, without also requiring an unexpired visa stamp.

A visa stamp permits a person to seek admission to the United States. It does not ordinarily determine how long the person may remain after admission, and its expiration does not undermine the reliability of an otherwise valid passport as proof of identity.

Texas’s proposed amendment demonstrates the real-world consequences of the federal regulation. When the regulation is applied literally, lawfully present residents can be prevented from obtaining a driver license even though the government can verify both their identity and their immigration status.

Submit Comments Before July 26, 2026

DPS is accepting public comments on the proposed amendment to 37 Texas Administrative Code § 15.24. Comments must be received no later than July 26, 2026.

Email submission of comments is preferred.

Email: DLDrulecomments@dps.texas.gov

Suggested subject line: Comments on Proposed Amendment to 37 TAC § 15.24

Suggested comment: 

Dear Mr. Major:

I am submitting this comment in opposition to the proposed amendment to 37 Texas Administrative Code § 15.24 that would remove the current acceptance of an expired United States visa when an applicant presents a valid foreign passport and an unexpired Form I-94.

I am lawfully present in the United States in valid [H-1B/L-1/O-1/F-1/other] status through [expiration date]. My visa stamp expired on [date], but my visa expiration did not end my immigration status. My current status is documented by my Form I-94 and [Form I-797 approval notice or other applicable document] and can be independently verified through the federal SAVE system.

A visa stamp is primarily a travel document used to request admission to the United States. It is not the document that controls how long a person may remain after admission. Requiring an unexpired visa stamp for identity purposes would prevent people like me from obtaining a Texas driver license even though we have a valid passport, valid immigration status, and federal records confirming both our identity and authorized stay.

a Texas driver license, I may be unable to [commute to work, transport my children, attend medical appointments, meet family responsibilities, or briefly describe the specific effect]. Obtaining a new visa stamp would require international travel, a consular appointment, significant expense, time away from work and family, and the risk of visa delays or administrative processing. I am not otherwise required to leave the United States simply because my visa stamp has expired.

I respectfully ask DPS to retain the current language allowing a valid or expired visa when accompanied by an unexpired Form I-94. Alternatively, DPS should delay the amendment while seeking clarification from the Department of Homeland Security, recognize a valid foreign passport accompanied by current SAVE-verifiable immigration status, or provide a non-REAL-ID driver license option for applicants who can establish identity and lawful presence under Texas law.

The proposed amendment would impose significant costs on lawfully present Texas residents, their families, and their employers without meaningfully improving identity verification or public safety. My passport remains valid, my identity remains unchanged, and my current immigration status can be verified directly with the federal government.

Thank you for considering my comments.

Sincerely,

Emily Neumann
Houston, Texas

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.

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Texas has an opportunity to avoid codifying a federal regulatory defect that may leave lawful residents unable to drive, work, care for their families, or participate in daily life. Individuals, employers, universities, hospitals, and advocacy organizations should submit comments on the proposed amendment to 37 TAC § 15.24 before July 26, 2026.