Special Subcommittee of the House Committee on Education. HBs 1562, 1609, and 1610: Undocumented Alien Students in Virginia

April 21, 2003

The 2003 Session of the General Assembly considered a number of bills addressing the admission of undocumented alien students to Virginia’s public institutions of higher education. The General Assembly ultimately adopted HB 2339, declaring any alien unlawfully present in the United States (and therefore ineligible to establish domicile pursuant to § 23-7.4 of the Code of Virginia) ineligible on the basis of residency within Virginia for any postsecondary educational benefit, including in-state tuition, unless citizens or nationals of the United States are eligible for such benefits in no less an amount, duration, and scope, without regard to whether such citizens or nationals are Virginia residents. At the Reconvened Session, the House of Delegates rejected the Governor’s recommendations providing exceptions for persons meeting certain residency and documenting intent to become residents; the measure was communicated again to the Governor on April 2, 2003. On May 1, 2003, the Governor vetoed the bill.

The House Committee on Education declined to pass three other measures (HBs 1562, 1609, and 1610) regarding undocumented student aliens, with the understanding that a study would be conducted examining the issues raised by the tabled measures.

HB 1562 would provide that public institutions of higher education may not knowingly accept for enrollment any illegal alien and directs each institution, upon discovering an enrollment of an illegal alien, to provide for the prompt dismissal of any such person from the institution. HB 1610 would provide eligibility for in-state tuition, but not classification as a Virginia resident, to undocumented aliens meeting certain residency, graduation, and affidavit of intent to legalize status requirements. Similarly, HB 1609 would allow the governing board of the Virginia Community College System (VCCS) to charge reduced tuition to undocumented aliens meeting residence, graduation, and affidavit requirements.

Finally, the Senate measure addressing these topics, SB 753, would eliminate current eligibility for in-state tuition to aliens holding an immigration visa and deny eligibility for in-state tuition and other state-issued post-secondary school benefits to any person deemed a foreign national—a non-U.S. citizen—under federal law. An exception was included to acknowledge federal immigration law and regulation that may confer state resident status on certain aliens.

Overview of Federal Requirements

The federal Immigration and Nationality Act (INA), enacted in 1952, details the requirements, procedures, and rights regarding the entry of aliens into the United States. With the passage of the Homeland Security Act, services formerly provided by the Immigration and Naturalization Service (INS) were moved to the Department of Homeland Security (DHS) under the Bureau of Citizenship & Immigration Services (BCIS), effective March 1, 2003.

The INA is replete with complex definitions and requirements. Simply stated, the INA defines an alien as any person who is “not a citizen or national of the United States”; aliens desiring entry to the United States must register and obtain a visa. Aliens who are age 14 and older who have not registered and been fingerprinted upon entry into the United States and who remain in the United States for 30 days or more must apply for registration and be fingerprinted within that 30-day period. Adding to the battery of definitions and subcategories describing aliens are terms such as conditional resident, permanent resident alien, legalized alien, and nonimmigrant.

Typically, upon arrival in the United States, persons who are not U.S. citizens must present a passport and a visa. There are approximately 80 types of visas for nonimmigrants—persons not seeking permanent residence and who may include government officials, vacationing visitors, temporary workers, foreign media, exchange visitors, athletes and entertainers, religious workers, and students. Two visas address this last category; the “F” visa is issued to nonimmigrant students pursuing “academic studies and/or language training programs,” while nonimmigrant students in nonacademic or vocational programs receive the “M” visa. The INA sets forth various criteria for these visas, including requirements for full-time enrollment, student financial self-sufficiency, maintenance of a permanent foreign residence, and BCIS approval of the school. The institutions providing the educational program—such as 2- and 4-year colleges, private elementary and public or private secondary schools, and trade schools—must apply to BCIS for this approval.

Individuals seeking to become permanent residents of the United States must apply for permanent resident status. These persons remain foreign nationals; they are not U.S. citizens but are deemed immigrants. Grants of this status—and issuance of the permanent resident or “green” card—may be based upon employment, marriage to a U.S. citizen, refugee status, or other factors.

Legislative Requirements and Judicial Challenges and Interpretations

According to the 2002 Health Policy Tracking Service of the National Conference of State Legislatures, there are approximately 8.5 million undocumented aliens in the United States, comprising 28 percent of the approximately 31 million alien/immigrants. In 2000, an estimated 607,000 unauthorized aliens aged 12 to 20 were enrolled in schools beneath the postsecondary level. An estimated 50,000–65,000 unauthorized alien children graduate from high school annually.

The illegal immigrant population increases by approximately 250,000 to 500,000 annually. About half of the illegal alien population enters illegally, while the other half enters legally and subsequently overstays or otherwise violates visa terms. On January 1, 2003, using “different assumptions” than the Census Bureau, the INS estimated the unauthorized alien population to be 7 million. Unauthorized aliens are not only ineligible for federal financial assistance and state assistance for higher education, they are also ineligible to work in the United States.

According to the U.S. Census Bureau, the Commonwealth is expected to gain 605,000 immigrants between 1995 and 2025; this estimated gain places Virginia eighth among the 50 states and the District of Columbia. Since 1996, Virginia’s public schools have witnessed enrollment increases of 80,000. Similarly, the number of Virginia public school students identified as having limited English proficiency (LEP) has grown from 17,000 in 1992 to 50,000 in 2000. There are an estimated 103,000 illegal aliens in Virginia, comprising 1.5 percent of the total state population.

Access to Public Education

Denial of public school enrollment to undocumented children pursuant to a Texas statute received U.S. Supreme Court scrutiny more than 20 years ago in Plyler v. Doe. The statute in question not only denied enrollment to students who could not establish their lawful residence, but also withheld state school funds supporting these enrollments from local school divisions. The Court ultimately ruled that the denial of enrollment violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. The Court distinguished the treatment of the children of illegal aliens, who have little influence over their parent’s conduct or their own status. The Court found no rational basis for “penalizing these children for their presence in the United States.”

The federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provided that alien students holding an F-1 visa and attending a public high school for up to 12 months must reimburse the public school system for the unsubsidized per capita cost of the education. Federal law also provides that students holding F-1 visas are prohibited from attending public elementary schools and publicly funded adult education programs.

Access to Higher Education

While states may not deny free public education (K–12) to illegal aliens, it is important to note that the Plyler ruling does not address higher education. Although some immigration experts contend that the legality (in the absence of congressional intent) of denying illegal alien access to post-secondary education remains unsettled, others have indicated that no federal or state statute precludes the admission of illegal aliens.

Access to post-secondary education benefits (but apparently not to post-secondary education per se), however, has received congressional consideration. The federal Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 specifically precludes states from providing a post-secondary education benefit to illegal aliens unless the same benefit is available to citizens or nationals regardless of whether the citizen/national resides in the state. The statute specifically states that the illegal alien’s residence in the state does not create an entitlement to the educational benefit.

Considered by the 107th Congress (2002), the Development, Relief, and Education for Alien Minors (DREAM) Act (S. 1291) would have authorized the U.S. Attorney General to “cancel the removal of, and to adjust to the status of an alien lawfully admitted for permanent residence” certain alien students who (i) are under age 21, (ii) are enrolled in higher education, (iii) have been in the United States for five years prior to the passage of the Act, and (iv) are of “good moral character.” The Senate Judiciary Committee approved the measure in June 2002; however, the 107th Congress adjourned without passing the bill.

On April 9, 2003, Congressman Chris Cannon (R-UT) introduced H.R. 1684, which would allow the states to determine “state residency for higher education purposes” and would “cancel the removal and adjust the status of certain alien college-bound students who are long-term U.S. residents.” The measure was introduced with bipartisan support; 30 co-sponsors represent equal numbers of Republicans and Democrats. A similar measure is expected to be introduced in the Senate.

The treatment of legalized aliens—immigrants and non-immigrants—for purposes of in-state tuition received Supreme Court scrutiny in 1982. In Toll v. Moreno, the Court struck down a Maryland statute that made resident aliens holding visas issued to officers of certain international organizations ineligible for in-state tuition. Congressional action had specifically provided that the particular visa did not prohibit the holder from acquiring domicile; the Maryland statute clearly denied in-state tuition to these nonimmigrant residents, while granting in-state rates to legalized permanent resident (LPR) aliens. Focusing on the federal Supremacy Clause, case precedent, and the particular visa’s conference of not only U.S. domicile and certain tax exemptions, the Court found that “state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.”

Also pertinent to discussions of benefits for aliens is the Supreme Court’s 1971 ruling in Nyquist v. Mauclet, striking down a New York statute that made receipt of state student financial aid by certain resident aliens contingent upon U.S. citizenship. The Court found that incentives to naturalization were not appropriately within the purview of the states and that the statute’s classification based upon alienage—subject to “close judicial scrutiny”— violated the federal equal protection clause. The Court noted resident alien tax support for state financial aid programs and found “no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis.”

Selected State Responses to Federal Requirements

Some states have recently enacted legislation granting in-state tuition to undocumented aliens who have graduated from high school and meet various additional requirements; “residency” in the state is not a requirement. Pursuant to Texas law, a student who is a citizen “of any country other than the United States of America” must pay those tuition rates “required of other nonresident students.” Amendments adopted in 2001, however, permit students to be classified as Texas residents until the individual establishes a residence in another state if the student (i) resided with his parent while attending a Texas public or private high school; (ii) graduated from a Texas public or private high school or received the equivalent of a Texas high school diploma; (iii) has resided in Texas for at least three years as of the date of receipt of the Texas high school diploma or its equivalent; (iv) registers as an entering student in a Texas institution of higher education not earlier than fall 2001; and (v) provides the enrolling institution “an affidavit stating that the individual will file an application to become a permanent resident at the earliest opportunity the individual is eligible to do so.” Significantly, the statute does not mention undocumented aliens, but refers to “individuals” meeting certain requirements. In addition, it does not overtly coerce U.S. citizenship, but rather addresses legalizing one’s immigration status.

Similarly, California enacted legislation authorizing exemption from nonresident tuition rates for students other than nonimmigrant aliens at certain state institutions of higher education if the student satisfies certain residency, graduation, and affidavit requirements. Consistent with this model, New York and Utah also provide in-state tuition for those nonresident students who satisfy high school, diploma, and affidavit of intent requirements.

In 2002-2003, more than 20 states introduced legislation addressing tuition for undocumented aliens. The Florida legislature is currently considering legislation granting in-state tuition to nonresident aliens who have resided in Florida for at least two years and meet various high school attendance, diploma, and affidavit requirements similar to those considered or adopted in other states. The 2001 Session of the North Carolina General Assembly considered, but did not pass, legislation that would have created a legislative study to review state law addressing tuition rates for non-citizen immigrant students as well as the feasibility of granting in-state tuition to these persons. The 2003 session of the Oregon and Washington legislatures are currently considering legislation similar to the statutes in effect in Texas and California.

In-State Tuition in Virginia: Admission and Enrollment of Aliens

Authority for making determinations of in-state tuition eligibility falls to the respective institutions. Ensuring consistency in institutional determinations are SCHEV guidelines, developed with the assistance of an advisory committee comprised of at least 10 representatives of the institutions, which address “domiciliary status questions.” Each institution must establish an appeals process for students aggrieved by eligibility determinations.

The Commonwealth grants in-state tuition on the basis of domicile—the “present, fixed home of an individual to which he returns following temporary absences and at which he intends to stay indefinitely.” The Code of Virginia clearly states that an individual can only have one domicile at a time, and that domicile, “once established, shall not be affected by mere transient or temporary presence in another jurisdiction.”

Critical to the two-pronged definition of domicile—physical residence and domiciliary intent—is the manner of establishing the requisite domiciliary intent. The Code specifies 10 factors that must be “considered” in establishing domiciliary intent; among these are continuous residence for at least one year prior to the date of alleged entitlement; state to which income taxes are filed or paid; driver’s license; motor vehicle and voter registration; property ownership; sources of financial support; and any other social or economic relationships with the Commonwealth and other jurisdictions. These criteria must have been met for one year prior to the time for which the in-state tuition is sought—the “date of the alleged entitlement.” Further clarifying the interpretation of these factors are SCHEV regulations.

Over the years, refinements to the Code, including a “mini-recodification” in 1984 as the result of a legislative study, have delineated a variety of circumstances under which domicile may be established and in-state tuition granted. Various exceptions are granted for active duty military personnel, certain nonmilitary students who are the parent or spouse of military personnel, students living outside but employed in Virginia at least one year who pay Virginia income taxes; and students living outside Virginia and claimed as dependents by parents who have been employed on a full-time basis in Virginia and paid Virginia income taxes on all taxable income earned in Virginia. In addition, state law grants various institutions authority to enter into special arrangement contracts” to offer reduced tuition charges and reciprocity arrangements.

Federal law precludes some visa holders from engaging in full-time study; Virginia institutions of higher education have been advised to deny enrollment to these individuals until such time as the appropriate changes in visa status have been secured.

SCHEV guidelines make clear that foreign students are not necessarily precluded from establishing Virginia domicile: the student may establish domicile through his parent, as would any other student. A 1970 opinion of the Attorney General also bolsters this provision, as “mere foreign citizenship would not foreclose one from having domicile in Virginia.”

While deferring to any “congressional intent to the contrary,” current Virginia law denies eligibility for in-state tuition to alien students “holding a student or other temporary visa …[as he does] not have the capacity to intend to remain in Virginia indefinitely and, therefore…[is] ineligible for Virginia domicile and for in-state tuition charges.” Bolstering this statute are regulations indicating that students who are undocumented and illegal aliens and thus are “unable to present valid, current INS documentation of their alien status are not eligible for in-state tuition.” The enrolling institutions are to determine whether the particular federal immigration documents, by their terms, preclude the individual from establishing domicile. The SCHEV guidelines detail the various visas and categories for domicile eligibility.

In 1970, the Office of the Attorney General noted that giving community college admissions priority first to area and Virginia residents, and then to “foreign students,” was within the authority of the State Board of Community Colleges to “allocate scarce resources as best it can.” More recently, in September 2002, the Office of the Attorney General indicated to the various institutional governing boards that “there is no federal or state statute that precludes an institution from admitting an applicant known to be an illegal alien.” In an immigration law compliance update, the Office of the Attorney General noted that, “strictly as a legal matter, institutions have broad discretion to decide what documentation they will request of applicants, and how they will treat applicants who are not lawfully present in the United States.” The Office of the Attorney General holds to its opinion that undocumented aliens cannot be eligible for in-state tuition, as their illegal status precludes them from formulating the domiciliary intent (“intent to remain indefinitely”) required to establish domicile. Although noting that other states’ statutes may grant in-state tuition not on the basis of domicile but on other requirements that would aid alien students, the Office of the Attorney General maintains that this mechanism nonetheless circumvents federal law.

The Attorney General’s 2002 communication was prompted by inquiries by the public institutions themselves; although there are no firm data regarding undocumented aliens in the Commonwealth, about 1,200 foreign nationals are enrolled in higher education in Virginia pursuant to visas. Northern Virginia Community College (NOVA) had previously enrolled illegal aliens some years ago, perhaps in response to the high numbers of foreign high school students in the area. Earlier Attorney General guidance had indicated there was no prohibition against such enrollment or the grant of in-state tuition. The community college subsequently changed this policy, however, and requested additional guidance from the Office of the Attorney General. NOVA enrolls about 9,000 foreign nationals, an estimated 100 of whom are undocumented.

Pursuant to legislation adopted by the 2002 Session of the General Assembly, Virginia’s public and private two- and four-year institutions of higher education as well as correspondence schools, post-secondary schools, proprietary career schools, and flight schools must notify the Attorney General whenever a student who has been (i) accepted for admission pursuant to a student visa fails to enroll or (ii) attending pursuant to a student visa withdraws or violates the visa terms. The Attorney General, in turn, must notify federal immigration authorities and other appropriate national, state, and local agencies of any such failure to enroll “until superceded by federal action.”


Presentations and discussion focused on the desire of many undocumented students to legalize their status and to pursue higher education; many undocumented high school students are unaware of their illegal status. It was noted that Latino students comprise the highest portion of school dropouts.

Discussion also noted the complexity of immigration laws, the possibility of creating a mechanism to facilitate the legalization process for undocumented students at the public school level, the status of illegal aliens who are in the process of legalization, the length of the legalization process as reported by a 21-year-old immigrant student, U.S. military service by non-citizens, the state income taxes paid by undocumented aliens, and inadequacy of current in-state tuition rates to support public higher education.

The subcommittees expect to meet in the next quarter of the calendar year.


The Hon. Robert Tata

For information, contact:

Kathleen G. Harris
Division of Legislative Services


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