Immigrant Policy Project


Tuition and Unauthorized Immigrant Students

June 26, 2003

In 1996, the illegal immigration reform law included a provision that prohibited states from “providing a postsecondary education benefit to an alien not lawfully present unless any citizen or national is eligible for such benefit.”  Immigrants, regardless of legal status, are eligible for free primary and secondary education under a 1982 Supreme Court decision. However, illegal or unauthorized immigrants are ineligible for federally-funded higher education grants and loans.  The 1996 provision (Sec. 505) instituted a restriction on states’ residency requirements and instate tuition benefits for higher education, affecting an estimated 50,000-65,000 unauthorized immigrant students annually.

In 2002-2003, more than 20 states considered legislation to allow certain long-term unauthorized immigrant students to become eligible for in-state tuition.  In 2002, California, Texas, Utah, and New York enacted legislation permitting these students to become eligible if they graduated 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 instate tuition.  Washington, Oklahoma and Illinois enacted similar legislation in 2003.  (States with legislation under consideration in 2002-2003: Arizona, California, Colorado, Florida, Georgia, Hawaii, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Carolina, Oklahoma, Oregon, Texas, Utah, Virginia, Washington, and Wisconsin.)

At the federal level, members of Congress have introduced bipartisan legislation to repeal the restriction on state residency requirements for higher education.  The Student Adjustment Act of 2003 (H.R. 1684) was introduced by 30 cosponsors (15 Republicans and 15 Democrats) on April 9.  In the Senate, the Development, Relief, and Education for Alien Minors Act (the DREAM Act) is expected to be introduced later this year. The bills would allow certain minor immigrant children to gain legal status and permit states to offer them in state tuition and financial aid. 


Proponents of these bills argue that the 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. 

This summary on tuition and unauthorized immigrant students provides a brief introduction to federal immigration law, relevant Supreme Court decisions on equal protection and education, select provisions of the 1996 immigration and welfare reform laws, and a description of pending federal legislation.


I.          Federal Immigration Law, Policy and Process:  an Introduction

Legal immigrants, or lawful permanent residents, seek to immigrate permanently to the U.S. for work or to rejoin family.  Humanitarian entrants – refugees, asylees, parolees – are granted entry if they have a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group.  Nonimmigrants enter the U.S. for a specific purpose and for a temporary period of time, for example, students, tourists, and business visitors. 

Finally, there is a population of immigrants in the United States without permission of the federal government.  These are variously known as illegal aliens, undocumented or unauthorized immigrants.  It is estimated that the illegal immigrant population increases by approximately 250,000 – 500,000 per year.  About half enter legally, then overstay or otherwise violate the terms of their visas and about half enter illegally (“without inspection”). 

The U.S. foreign-born population of 31 million, according to U.S. Census figures, breaks down as follows: 

Unauthorized/Undocumented Immigration – 8.5 million, 28% of the immigrant population; 
Legal Immigrants/Lawful Permanent Residents – 9.3 million, 30%;
Naturalized Citizens – 9.4 million, 30%;
Legal Nonimmigrants – 1.3 million, 4%; and,
Refugee Arrivals – 2.3 million, 8%.

More recently, on January 31, 2003, the INS issued estimates of the total unauthorized population at 7 million.  The INS states that the Census report uses different assumptions and includes 1.7 million quasi-legal migrants – aliens who maintain a legal migrant status in the United States.  The INS estimates are based on the foreign-born population counted in the 2000 Census and annual INS statistics on immigrants admitted, deportable aliens removed, and nonimmigrant residents admitted.  State by state estimates are included in the report (see the INS website noted under references.)

Unauthorized immigrant students are children who were brought into the U.S. by their parents.  The Urban Institute estimates that nationwide in 2000, there were 607,000 unauthorized immigrants aged 12 to 20 in schools below college level; 402,000 of these had been in the US for 5 years.  They also estimate that 60,000-80,000 long term unauthorized immigrants reach age 18 annually; and that 50,000-65,000 graduate from high school each year.

Unauthorized immigrants are ineligible for federal financial assistance and state assistance for higher education.  Unauthorized immigrants are also ineligible to work in the U.S.

The Supreme Court has ruled that children, regardless of immigrant status, must be provided elementary and secondary education.  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).  Immediate relatives of U.S. citizens do not have to wait for a visa number; relatives in other categories must wait for visas to become available under a preference system, as do immigrants based on employment (these visas have annual caps by preference category and country.) 

Congress has attempted to draw a “bright line” between legal and illegal, or unlawful, immigrants.  In the 1986 immigration reform law, the goal was to close the back door of illegal immigration so that the front door of legal immigration could remain open.  The law created sanctions against employers for hiring illegal immigrants, and allowed the legalization of 2.6 million illegal immigrants who had resided in the U.S. since 1982. Other federal laws have permitted longterm illegal immigrants to adjust to lawful status, for example, the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), which allows Nicaraguans, Cubans, Salvadorans and Guatemalans to become eligible for permanent residency.

The 1996 federal welfare law muddied the clear line between legal and illegal immigrants by creating new and more complex eligibility requirements: longterm legal immigrants lost some federal benefits; new arrivals faced five year bars; and “PRUCOL” immigrants become disqualified for benefits.  Legal immigrants entering after the law was enacted on August 22, 1996 are barred from receiving federal means-tested public benefits (TANF, Medicaid, SCHIP, food stamps, and SSI) for five years.  Legal immigrants resident as of August 22, 1996 lost eligibility for food stamps and SSI retroactively.  Immigrants legally residing in the U.S. who had been granted benefits by the courts (“PRUCOL” aliens) became “not qualified” aliens, along with illegal immigrants. And, states were given the option to provide TANF and Medicaid to immigrants resident before August 22, 1996.  Congress, since 1996, has restored eligibility for some benefits: SSI and Medicaid in 1997, and food stamps in 1998 and 2002.


II.         Supreme Court decisions on equal protection and immigrants’ access to education

The 14th Amendment of the U.S. Constitution prohibits a state from denying to anyone within its jurisdiction the equal protection of the laws, and has been used to prohibit discrimination on the basis of national origin. 

Graham v. Richardson(1971).   A unanimous Supreme Court struck down state laws in Pennsylvania and Arizona that denied legal immigrants’ access to state welfare programs because they violated the 14th Amendment and because they infringed on the federal government’s plenary power over immigration policy. 

Matthew v. Diaz (1976) challenged the constitutionality of a federal statute that limited eligibility for Medicare benefits (the buy-in to Medicare Part B) to citizens and resident aliens with 5 years of residence in the U.S.  The Court ruled that federal plenary power allows distinctions between citizens, aliens, and groups of aliens; but states do not have a legitimate basis for treating citizens and immigrants differently.  In addition, the ruling noted that Congress could make distinctions between those permanent residents who had lived in the U.S. a short time and those who had lived her long enough to acquire “greater affinity with the United States” and satisfy naturalization residency requirements. (Source: Interpreter Releases, September 23, 1996, “The New Alien Restrictions on Public Benefits: The Full Impact Remains Uncertain”, by Charles Wheeler.)

The 1996 federal welfare law attempted to grant new authority to states to restrict access to state public benefits; it has yet to be determined by the Court whether Congress can grant states the authority to discriminate on the basis of lawful alienage i.e., violate the equal protection clause.

In Toll v. Moreno (1982), the Supreme Court ruled that the University of Maryland could not discriminate against nonimmigrant students in setting in-state tuition and fees.  The University's policy that citizens and immigrant aliens may obtain in-state status, but nonimmigrant aliens could not, was considered a violation of the Supremacy Clause of the U.S. Constitution.

Note that the above court cases dealt with legal immigrants and legal nonimmigrants; the next case deals specifically with illegal immigrants:

Plyler v. Doe, (1982) states that any child, regardless of immigration status, may access elementary and secondary school.  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 the rest of their lives.  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.

III.       Immigrants and Higher Education:  the 1996 Federal Laws

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Sec. 505) prohibits states from providing a postsecondary education benefit to an alien not lawfully present unless any citizen or national is eligible for such benefit.   (P.L. 104-208).

SEC. 505. <<NOTE: 8 USC 1623.>> LIMITATION ON ELIGIBILITY FOR PREFERENTIAL TREATMENT OF ALIENS NOT LAWFULLY PRESENT ON BASIS OF RESIDENCE FOR HIGHER EDUCATION BENEFITS. (a) In General.--Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary 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. (b) Effective Date.--This section shall apply to benefits provided on or after July 1, 1998.

The Congressional Research Service notes that there is disagreement about the meaning of the provision, and there is no guidance in congressional report language or in federal regulations.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, sec. 411(d):  States may provide public benefits to “not qualified” immigrants (which includes illegal immigrants, asylum applicants, temporary agricultural workers and PRUCOL) only through enacting state law after this bill is enacted  (P.L. 104-193).  This provision raises a couple of questions: 1) whether it represents a “commandeering” of state legislative authority in how states spend states’ money; and 2) whether this provision applies to education, that, is, whether education should be considered a “public benefit”.

Federal Legislation

In the last Congress, several bills were introduced to repeal Section 505 and allow certain minor immigrant children to gain legal status.  The Student Adjustment Act in the 107th Congress had 62 cosponsors (H.R. 1918). In the Senate, the Development, Relief, and Education for Alien Minors Act (the DREAM Act) had 18 cosponsors and was introduced by Senators Orrin Hatch and Richard Durbin (S.1291).  This year, the Student Adjustment Act of 2003, was reintroduced in the House on April 9, 2003 with 30 cosponsors (15 Republicans and 15 Democrats) and as of June 26, had attained 60 cosponsors. The DREAM Act is expected to be reintroduced in the Senate later this year; a summary of last year’s legislation is included for reference.

U.S. House of Representatives

HR 1684, The Student Adjustment Act of 2003, would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine state residency for higher education purposes and to amend the Immigration and Nationality Act to cancel the removal and adjust the status of certain alien college-bound students who are long-term U.S. residents.  Eligible students are those: under the age of 21, with good moral character, who have lived in the U.S. for five years, and are enrolled at or above the 7th grade or actively pursuing admission to a college or university.

U.S. Senate

S.1291:  Originally introduced in 2001, and expected to be reintroduced in 2003, the DREAM Act proposed repeal of Section 505 and would have allowed unauthorized immigrants to become legal immigrants if they met the following conditions:  were between 12 and 21 years old on enactment, filed application for adjustment before age 21; graduated from high school or received the equivalent certificate, had 5 years of residence, was of good moral character, and was not an inadmissible or deportable alien.  The bill was introduced by Senator Orrin Hatch and cosponsored by Senators Bingaman, Boxer, Brownback, Cantwell, Corzine, Craig, DeWine, Dodd, Domenici, Durbin, Grassley, Kennedy, Kerry, Leahy, Lugar, Murray, Reid, Sarbanes.  On June 20, 2002, S.1291 was voted out of the Judiciary Committee, but was not considered on the Senate floor before Congress adjourned.

Both bills would permit adjustment to legal status through granting “cancellation of removal” and allow aliens to apply without being in removal proceedings. Federal law limits this to 4000 per year, but both bills also allow this group not to count against the limit. Cancellation of removal normally has the following requirements:

INA Section 240A(b), an alien who has been physically present in the US for a continuous period of at least 10 years, who has been a person of good moral character, and who has not been convicted of a criminal offense that could result in the alien’s removal from the US may seek cancellation of removal and adjustment of status, provided the alien has a spouse, parent or child who is a U.S. citizen or lawful permanent resident. Cancellation is granted only if aliens demonstrate that their removal from the US would result in exceptional and extremely unusual hardship to a spouse, parent or child who is a lawful permanent resident or U.S. citizen. (Source:  USDOJ INS Summary 3/24/97 (rev) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.)

It is possible that a number of the undocumented immigrant students may be in the process of adjusting status but are caught in the adjudication backlog at INS. There are large backlogs in INS processing of green cards, citizenship applications and other adjudications.  For example, there were more than 342,000 asylum cases pending adjudication at the beginning of 1999.  Under the NACARA Act, about 100,000 Salvadorans and Guatemalans filed applications, paying $30 million in fees.  However, the INS has estimated it will take 20 years to get through the backlog of NACARA applications.  In a more recent INS report (February 2003), the total number of pending immigration applications has reached nearly 5 million, a 34 percent increase when compared to February 2002.  In other areas, the INS is making progress:  the number of pending naturalization applications was reduced from 2 million in 1998 to 600,000 in 2002. 


References and Resources:

Bureau of Citizenship and Immigration Services (BCIS) website:

“College Tuition and Undocumented Immigrants,” NCSL Legisbrief by Christine Walton, NCSL (forthcoming). 

“Debating In-State Tuition for Undocumented Alien Students”  American Association of State Colleges and Universities,

Migration Policy Institute (for information on the size, composition and socio-economic status of the foreign-born population):

“State Proposed or Enacted Legislation Regarding Immigrant Access to Higher Education”

National Immigration Law Center, April 8, 2003.

U.S. Immigration and Naturalization Service, “Estimates of the Unauthorized Immigrant Population Residing in the United States:  1990-2000.”  January 31, 2003.

Prepared by:
Ann Morse, Program Director
Immigrant Policy Project
National Conference of State Legislatures