Special Subcommittees on Undocumented Alien Students in the Commonwealth

October 7, 2003

The third and final meeting of the House and Senate Special Subcommittees on Undocumented Alien Students in the Commonwealth opened with an opportunity for speakers who registered at the previous meeting to present their views.

A representative of Hispanic Outreach Leadership Action (HOLA) spoke about her experience in working with undocumented children in Head Start and other programs. She noted that many students are brought here when they are quite young and do not know any other home or that they are not legal residents. These students are bright and hard working. Many of the students strive to achieve in public school, with college as a goal. They are often disappointed to discover that they are not able to afford the costs of higher education because foreign students are charged out-of-state tuition. Pointing out that jails, prisons and welfare are expensive for society, she stated that undocumented students need the chance to take advantage of the American dream and to become educated, productive citizens.

The special subcommittees were reminded that existing federal law (8 U.S.C. § 1623) states that

. . . an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or political subdivision) for any post secondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

In Virginia, this language is interpreted to mean that if undocumented alien students are provided in-state tuition, then all out-of-state students must be accorded the same benefit under the same circumstances. Further, under Virginia law, in-state tuition eligibility requires that the applicant be a Virginia resident who can legally formulate domiciliary intent (i.e., “the present intent to remain indefinitely”)—a state-of-mind requirement that is impossible for illegal aliens to satisfy since they have no legal right to remain indefinitely.

Federal Responses

Following a review of the two previous meetings, the special subcommittees received the responses to the questions that were submitted to the Bureau of Immigration and Customs Enforcement (BICE) within the Department of Homeland Security through White House staff. Two members of the House Special Subcommittee submitted questions.

Delegate Thelma Drake asked:
We know that the federal immigration agency requires detailed scrutiny for applicants for student visas. What kind of scrutiny (if any) does BICE have in place for undocumented alien students?

The response indicated that “the scrutiny for undocumented alien students is the same as for all undocumented aliens” and that an interior enforcement strategy has been developed that “will ensure that enforcement activities are carried out on a consistent basis nationwide.”

Delegate Robert Tata asked several questions:
How many individuals in Virginia are currently known to be applying for legal status? How many young people of college age would be among this number? Do we know or have estimates of how many undocumented alien children are residing in Virginia?

The responses noted that:

  • 25,441 individuals in Virginia applied for legal status in FY 02.
  • 26,876 individuals in Virginia applied for legal status in FY 01.
  • 20,087 applied for legal status in FY 00.
  • We do not know how many young people of college age would be among these numbers.
  • We do not know or have estimates of how many undocumented alien children are residing in Virginia.


The special subcommittees then discussed recommendations or proposals to be provided to the General Assembly. A draft letter to the Virginia Congressional delegation was proposed, which stimulated considerable discussion.


The members concluded that the Congressional delegation letter should contain detail concerning the legislative history of the issue in Virginia; the content of the various legislative proposals that were considered in the 2003 Session; the fact that other states have statutes that relate to in-state tuition for undocumented students; and a description of Virginia’s factual situation.

Specifically, Virginia’s factual situation is that the estimated 103,000 illegal alien population residing in the state includes a large percentage of school age children; that Virginia has an obligation to provide K-12 education to these children pursuant to a Supreme Court decision; that No Child Left Behind requires that the Commonwealth improve achievement among these students; and that the General Assembly of Virginia does not have the tools to make decisions on the issues associated with this population.

The special subcommittees also determined that the Congressional letter should recognize that this issue stems from an immigration problem, which is solely within Congressional jurisdiction. The letter should acknowledge that Congress is currently considering legislation relating to this issue and should exhort Congress to allow states to make their own decisions about the eligibility for state higher education benefits.

Some of the members believe the issue of in-state tuition for undocumented alien students to be a critical economic concern for all Virginia communities, whereas others noted that, while the economic issues prevail, the word “illegal” raises many emotions in citizens, particularly vis-à-vis employment opportunities and access to higher education. Several individuals commented that the students are trying to live by the rules as they know the rules to be. Conversely, it was noted that the United States is a nation ruled by law and that federal law dictates in this situation.

Board of Education

The special subcommittee also decided to draft a letter to the Board of Education concerning the feasibility of developing and making available materials to school divisions for students to take home that address immigration, legalization of illegal status, and U.S. citizenship and its benefits. The distribution of the materials would be discretionary for the various school boards and the Board of Education would recommend the appropriate calendar, class, and vehicle for dissemination of this information.

State Authority

The special subcommittees did not reach a consensus on how Virginia’s issues should be handled; however, the members did agree that, whether they like it or not, the present federal law controls and that the federal system needs to be restructured. Although the special subcommittee did not make recommendations for federal legislation, they stated strongly that all states, especially states such as Virginia with large populations of undocumented alien students, must have more authority to make decisions in this area and more help from the federal government to resolve the education and other public service issues associated with illegal immigration.

The Hon. William C. Mims
The Hon. Robert Tata

For information, contact:
Kathleen G. Harris
Norma E. Szakal
Division of Legislative Services


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