Any day now a federal appeals court could decide to throw out the Federal Motor Carrier Safety Administration’s non-domiciled CDL ban, and whether that rule sinks or swims largely depends on the rules around CDLs for visa holders.
- FMCSA’s non-domiciled ban could get thrown out in court any day now.
- A big issue for the judges was the agency allowing visa holders to get CDLs, which might just defeat the point of the ban.
- Overdrive reporting found at least one state appears to be issuing more non-domiciled CDLs now than before the ban went into effect early this year.
Not only could allowing visa holders to get CDLs convince a court that FMCSA’s ban is “arbitrary and capricious,” these visas may have taken the place of traditional non-domiciled CDLs.
Overdrive found at least one state that appears to be issuing more non-domiciled CDLs than before the ban, all of them going to visa holders.
FMCSA’s non-domiciled CDL ban shuts down almost all CDL eligibility for non-citizens aside from holders of a few classes of non-immigrant visas (H-2A, H-2B, and E-2).
In oral arguments before the U.S. Court of Appeals for the D.C. Circuit, a panel of judges grilled FMCSA on why they’d allow visa holders to get CDLs if non-citizen drivers were such a problem.
FMCSA’s response to that challenge, often raised by opponents of the rule, has long been that when a non-citizen goes through the visa application process, the State Department can properly vet them, unlike state driver licensing agencies (SDLAs), of which FMCSA has said 28 aren’t federally compliant.
“Following consultation with the U.S. Department of State and the U.S. Department of Homeland Security, [non-domiciled CDL] eligibility is limited to nonimmigrant status holders who undergo enhanced consular vetting and interagency screening, which serves as a functional proxy for driver history vetting by the SDLAs,” FMCSA wrote in its rulemaking.
By limiting non-domiciled CDL eligibility to visa holders, “FMCSA ensures that non-domiciled drivers undergo rigorous driver history checks that [state DMVs], who lack access to this critical information, are incapable of performing independently,” the rulemaking continues.
But that came under heavy fire in court. Why not just train state DMVs better? How does the State Department assess foreign driving applicants?
[Related: FMCSA’s non-domiciled CDL ban takes a beating in court]
For E-2 visa applicants, who must come from U.S. treaty ally countries and invest at least $100,000 in starting a business here, a in court asked “why on earth” would the State Department consulate employee care about their driving record?
Though FMCSA’s rulemaking said it had consulted with the State Department, FMCSA’s lawyer in court wasn’t able to describe specifically how the agency knew all visa applicants would have their driving records properly vetted.
Not only would that visa applicant get CDL eligibility, but any of their employees would too. FMCSA could not say for sure that in all cases the visa applicant would have their driving records checked prior to applying for a CDL.
In that case, couldn’t an investor from Belgium, Canada, Montenegro, Slovenia, Turkey (all NATO allies), the Philippines, Guatemala or Brazil (other treaty allies) buy a truck for $100,000 and get a bunch of drivers approved?
That would defeat FMCSA’s driving motivation behind the ban: To require driving records from foreign drivers.
Is the visa loophole allowing more non-citizen drivers now?
Overdrive reached out to a few states to check on just who is getting CDLs through visas.
Arizona’s Department of Transportation said since FMCSA’s March ban went into effect 34 CDLs have been issued to Arizona customers with a Temporary INS authorized presence. In July of 2025, Overdrive polled all 50 states on how many non-domiciled CDLs they’d issued, and Arizona said up to June 6, 2025, it had 6,103 non-domiciled CDLs in force and 2,496 non-domiciled commercial learner’s permits.
So, in Arizona’s case, it’s likely non-domiciled CDL issuance is way down.
However, North Dakota said it received approval from FMCSA to resume issuing non‑domiciled CDLs to visa holders effective April 13, 2026, and since then it has issued 267 non‑domiciled commercial driver licenses. That’s higher than prior average levels.
Overdrive’s July 2025 report found North Dakota had 627 active non-domiciled CDLs and that it issues, on average, 264 a year. Now, even restricted to only visa holders, it’s issued 267 in just over five months.
Of those 267, 264 were Class A CDLs.
In April after North Dakota resumed issuing non-domiciled CDLs, the state told Overdrive it had issued 132 non-domiciled CDLs in just the first ten days, and that all 132 had been Class A CDLs.
Overdrive also contacted Pennsylvania, one of the 28 states placed under special orders to stop issuing non-domiciled CDLs, even to visa holders, and heard back that despite the state completing the internal audit as requested by FMCSA, and FMCSA only finding two paperwork violations in the state out of 150 CDL records sampled, FMCSA just hasn’t written Pennsylvania back.
The state hasn’t issued any non-domiciled CDLs since the March ban.
With 27 other states banned from issuing non-domiciled CDLs, issuance is likely way way down with the ban, though the visa issue could present a loophole for some savvy applicants.
The judges found other faults with FMCSA’s non-domiciled ban as well, but the visa issue took up most of the time in oral arguments.
The challengers to FMCSA’s non-domiciled ban argue the rule is “arbitrary and capricious,” basically not logical. A major loophole around visa drivers could poke a pretty big hole in FMCSA’s logic.
The court will decide any day now whether or not to throw out FMCSA’s non-domiciled CDL ban. Sign up for Overdrive’s newsletter to stay on top of it, we’ll send out an alert via email as soon as the case is decided.
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