Immigrant Policy

In-State Tuition and Unauthorized Immigrant Students

July 26, 2006

In 1996, the illegal immigration reform law instituted a restriction on states’ residency requirements and in-state tuition benefits for higher education, affecting an estimated 50,000-65,000 unauthorized immigrant students annually. Recently, Congress has been considering bipartisan legislation to repeal this provision and help certain minor immigrant students gain legal status. In the 108th Congress, legislation in both the House and Senate would have repealed the federal restrictions on in-state tuition and allowed certain long-term unauthorized immigrant minors to gain legal status. Legislation with bipartisan cosponsorship was reintroduced in the Senate (S.2075) on November 18, 2005. This legislation was added as an amendment to the Senate’s immigration bill, S.2611. The American Dream Act, H.R. 5131, was introduced April 6, 2006 with bipartisan cosponsorship.

In response, ten states have enacted legislation to allow long-term unauthorized immigrant students to become eligible for in-state tuition if they meet certain requirements: California, Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, and Washington.

Background

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Sec. 505) sought to prohibit states from providing a postsecondary education benefit to an alien not lawfully present in the United States on the basis of residence unless any U.S. citizen or national is eligible for the same benefit. (P.L. 104-208).

Congress is currently considering legislation to allow these students a path to legal status and eligibility for in-state tuition rates. The Development, Relief, and Education for Alien Minors Act (the DREAM Act) would restore the state option to determine residency for purposes of higher education benefits. S.2075 would provide conditional legal status to those who were under the age of 16 when they entered the country; have been physically present in the United States for at least five years immediately preceding the date of this measure becoming law; have earned a high school diploma or GED; be a person of good moral character; and not be inadmissible or deportable under criminal or security grounds of the Immigration and Nationality Act. These students would be able to obtain permanent resident status if they graduate from college or a trade school within six years or if they join the military. The legislation was introduced by Senator Durbin and currently has 20 cosponsors. The DREAM Act has also been added to the Comprehensive Immigration Reform Act of 2006, S.2611. In the House, similar legislation was introduced April 6, 2006 by Representative Diaz-Balart and currently has 16 cosponsors (H.R. 5131, the American Dream Act.)

Proponents of these bills argue that unauthorized immigrant children had no choice in entering the U.S. illegally, have grown up in the U.S., and can make economic and social contributions if allowed to continue their studies. Opponents believe the bills would reward lawbreakers, that only lawful resident students should qualify for resident tuition, and that it could result in added costs to taxpayers.

Any child, regardless of immigration status, is eligible for free primary and secondary education under a 1982 Supreme Court decision (Plyler v. Doe). The Supreme Court feared that denying children an education might create a permanent underclass of illegal immigrants who probably would remain in the United States. Discrimination against the children would punish them for the acts of their parents, since the children had no choice in entering the United States. The total denial of an education to these children would stamp them with an ''enduring disability'' that would harm both them and the State all their lives.

When students without legal residency apply for college they are asked for a social security number and citizenship status. While they may still be allowed to attend, they are not eligible for federal aid until they gain legal immigration status. Legal status can sometimes be obtained through family or work-based petitions (e.g., citizen parents by birth or naturalization can apply for adjustment of status for their minor children; citizen spouses can apply for their fiance(é); an employer can apply for their employee).

State Actions

In June 2001, Texas was the first state to pass legislation, followed by California, Utah, and New York in 2001-2002. The legislation permitted these students to become eligible if they graduate from state high schools, have two to three years residence in the state, and apply to a state college or university. The student must sign an affidavit promising to seek legal immigration status. These requirements for unauthorized immigrant students are stricter than the residency requirements for out-of-state students to gain in-state tuition. Washington, Oklahoma and Illinois (in 2003); Kansas (in 2004); and New Mexico (2005) enacted similar legislation. In April, 2006, Nebraska became the 10th state to enact legislation to allow certain long-term unauthorized immigrant students to become eligible for in-state tuition.

As of July 24, 2006, 51 bills were introduced in 21 states related to education and immigrants. Specifically related to in-state tuition, bills in Connecticut, Florida, Maryland, Mississippi, Nebraska, New Jersey, and Virginia would provide in-state tuition; bills in California, Kansas, New Mexico and Utah would repeal their laws; and Arizona, Kentucky, Missouri, and Virginia would require students to prove lawful status. Other states call on Congress to pass the DREAM act or clarify eligibility for financial assistance for certain immigrant students; and several would bar unauthorized immigrants from enrollment.

Of these, 4 states enacted legislation: in addition to Nebraska (above); Virginia allows in-state tuition for those holding a legal immigration visa or classified as a political refugee; Wyoming bars unauthorized immigrants from a new scholarship program; and Georgia prohibits any student who is not a citizen or a legal permanent resident from in-state tuition eligibility.

Prepared by:

Ann Morse, Program Director, Immigrant Policy Project
and Leya Speasmaker, State-Federal Relations Fellow
National Conference of State Legislatures
Washington, DC office