Special Subcommittee of the House Committee
on Education. HBs 1562, 1609, and 1610: Undocumented Alien Students in
The 2003 Session of the General
Assembly considered a number of bills addressing the admission of undocumented
alien students to Virginias 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 Governors 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 nationala non-U.S. citizenunder
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 nonimmigrantspersons
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 programsuch
as 2- and 4-year colleges, private elementary and public or private secondary
schools, and trade schoolsmust 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 statusand issuance of
the permanent resident or green cardmay 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 50,00065,000
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, Virginias 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 parents 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 (K12) 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 aliens 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 aliensimmigrants
and non-immigrantsfor 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 visas 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 Courts 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 statutes
classification based upon alienagesubject 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
Selected State Responses to
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 ones 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
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 domicilethe 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 domicilephysical residence and domiciliary intentis
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; drivers 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 soughtthe 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
[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 Generals
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, Virginias 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
Kathleen G. Harris
Division of Legislative Services
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