The Federal Motor Carrier Safety Administration's non-domiciled CDL ban faced off for a rematch against its old rival on Tuesday at the U.S. Court of Appeals for the D.C. Circuit.
The ban, already once defeated by non-citizen owner-op Jorge Rivera Lujan and his backers, underwent heavy scrutiny and faced serious challenges during oral arguments.
A panel of judges, Cornelia T.L. Pillard, J. Michelle Childs, and Patricia A. Millett heard the arguments. All three judges were appointed by Democrat presidents. Previously, Overdrive reported the panel would have one Republican-appointed judge, but the panel changed in the weeks since.
FMCSA's rough outing came after it totally retooled its reasoning after the first non-domiciled CDL ban, attempted in September 2025, got thrown out in court by November. (Access a full timeline of the rule's saga via this link.)
The first effort centered around safety and a string of deadly crashes, whereas now FMCSA cites a lack of driving records for foreign applicants and state DMV issues processing work authorizations as its primary motivators for the ban.
The safety argument over non-domiciled CDL drivers
Though FMCSA has abandoned the safety argument, and a raft of blue states and advocacy organizations now say non-citizen drivers might actually be even safer than U.S. citizen drivers, on the issue of records judges seemed to side with the government.
“It seems reasonable for the agency to want foreign driver records," one judge said to Lujan's counsel. "I think everyone agrees a record of dangerous driving is a powerful indicator that you will be a dangerous driver the future."
Lujan's lawyer didn't dispute the point, instead pivoting to say there's no evidence non-citizen drivers are less safe.
At least one judge did not buy that line of reasoning. "Saying you don’t have evidence that this group of people is more dangerous is not really responsive," the judge said. "We still want to know which of the people are going to be dangerous and potentially exclude them" by obtaining driving records.
FMCSA's objection to Employee Authorization Documents scrutinized
Eventually, the importance of driving records came to hurt FMCSA's case.
Jorge Rivera Lujan himself, a Deferred Action for Childhood Arrivals (DACA) recipient, is a citizen of Mexico who has lived in the U.S. since he was two years old and does have a U.S. driving history any DMV can review.
FMCSA cited state DMV issues with interpreting work authorizations (also called Employee Authorization Documents) in explicitly denying DACA applicants CDL eligibility in their second, February rulemaking, now before the court. Lujan still relies on a work authorization document to present to the DMV.
FMCSA cited what they called a "collapse" of DMV abilities to review these documents, or I-94 forms that prove someone's legal presence in the country, but on Tuesday the court heard that very few examples exist of serious mistakes made with those codes on CDL applications.
In Pennsylvania, for example, Lujan's lawyer said FMCSA found "only two out of 150" reviewed cases where applications were coded improperly.
One judge called FMCSA's response to this challenge "utterly non-responsive," looking at the I-94 form and noting that there isn't actually an "expiration date" noted as such on the form.
FMCSA over the course of 2025 continually hammered states for issuing CDLs that remained valid longer than an applicant's work authorization or legal presence form, but the standard practice before a recent action from the Trump White House was for those authorizations to immediately renew. In other words, it wasn't clear when a work authorization would expire, anyway.
Visa exceptions for non-domiciled CDLs raise questions
FMCSA mostly got hammered on the narrow exemptions to its non-domiciled CDL ban, namely allowing H-2A, H-2B, and E-2 nonimmigrant visa holders to still get CDLs.
FMCSA's rulemaking reasons that State Department staff can assess the driving history of those applicants, taking it off the plate of DMVs and subjecting them to a proper level of vetting.
However, most visa applicants aren't getting into CDL driving, so one judge had major doubts that the State Department was actually ready to take on a vetting role for CDL applicants.
Looking specifically at E-2 visas, which allow a citizen of a U.S. treaty ally to enter and work in the United States based on a substantial investment in a U.S. business, one judge found some profound things to object to.
Overdrive has spoken to a British couple who met the bar for substantial investment and got an E-2 visa by buying a truck for concert hauling work, but neither FMCSA's lawyer nor a judge understood how that visa would reliably lead to driver record vetting. Yet individual truck owners weren't the kind of investor FMCSA discussed with the court on Tuesday.
FMCSA's lawyer said that not only would an investor be allowed a CDL-eligible visa, but also their employees. (Why then couldn't a foreign company simply invest in buying trucks in the U.S. and get a bunch of visa drivers approved? Overdrive has seen some evidence of an upswing in non-domiciled CDL issuance for visa holders.)
But as for the E-2 applicant, the investor, someone who necessarily has more than $100,000 to spend, "why on earth" would the State Department consulate employee care about their driving record? a judge asked.
Comparing the criteria for E-2 applicants to the thousands of established non-domiciled CDL drivers in America, it seemed to one judge "freakish" that an investor visa "would somehow be a more reliable indicator of driver records than actual driver records in this country."
FMCSA's lawyer explained how they envisioned visa applications leading to CDL vetting.
"An individual who wants to sponsor an employee submits a job description, a statement of work, that would necessarily include 'we want them to drive a tractor-trailer, we want them to drive a large vehicle, we want them to drive a bus,' and then when that consular official is adjudicating the visa application, they have that in front of them," FMCSA's lawyer said.
"So they only check driving records if the description says they drive a truck?" asked the judge.
FMCSA's lawyer admitted the rulemaking didn't directly spell out just what the labor certification process would be.
“If the employer doesn’t mention truck driving.... Would that trigger" consular vetting? the judge asked.
"I don’t know," FMCSA's lawyer responded.
"That’s a huge problem," the judge said. "It hardly seems as much of a safety proxy to you if it all depends if the employer uses 'will need a CDL' or 'will be a commercial driver'" in a visa application, the judge said.
FMCSA's lawyer said they could show some supplemental documents, but the judge seemed unconvinced.
"How is this remotely a rational proxy [for safety] if it all depends on whether particular magic words are used by the employer?" the judge asked.
"I don't think that's a fair read," FMCSA's lawyer said, saying the rule generally stated visa applicants would have to describe their work.
Potentially, that issue gets sorted out and explained to the court's satisfaction behind the scenes.
Ultimately, the court and Lujan's side articulated several different ways FMCSA could have gone about solving its stated problems of work authorization interpretation and driving histories without excluding some 200,000 drivers from CDL eligibility.
Overdrive will watch out for more from the court on this case and the fate of FMCSA's non-domiciled CDL ban.
