Although June is a month of celebration for many high school graduates, particularly those who are college-bound, it is a time of uncertainty for graduates who are undocumented immigrants - aliens who entered the United States without inspection or were admitted on nonimmigrant (temporary) visas and overstayed. Few students can afford the enormous cost of a college education at full rates. Undocumented students are no exception; but, for them, federal aid is unavailable, and many states treat their own undocumented residents as ineligible for in-state tuition. For those students, the passage of H.R. 1918, introduced in Congress last month, would be a godsend.

In 1982 the Supreme Court held 5 to 4 in Plyler v. Doe, 457 U.S. 202, that the states may not refuse a public school education to residents of a school district simply because they are undocumented immigrants. However, one of the central pillars of this equal protection decision may not lend the same support to subsidizing a college education. Referring to the children affected, the Plyler majority noted, at 457 U.S. 223-24:

The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [this denial], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims.

So Plyler doesn’t necessarily govern post-secondary education. Whether, in the absence of federal legislation, universities may deny admission to undocumented students is unsettled. As it happens, no state law expressly prohibits their enrollment. California’s attempt to erect such a bar through Proposition 187 was defeated by a U.S. district court decision that found the subject preempted by federal legislation discussed below. See League of United Latin American Citizens v. Wilson, 997 F. Supp. 1244, 1256 (C.D. Cal. 1997), 1998 U.S. Dist. LEXIS 3368 (1998) (granting permanent injunction and declaratory relief).

Some university officials, however, bar undocumented students from enrollment because they misunderstand or ignore their own rules or because of ethnic or racial prejudice. See Michael A. Olivas, Storytelling Out of School: Undocumented College Residency, Race, and Reaction, 22 Hastings Const. L.Q. 1019, 1069-1072 (1995). And state universities often find them ineligible for in-state tuition under complex domicile requirements. Id. at 1051-71. Under those requirements, the situation of undocumented students is distinct from that of aliens who are in the United States in a lawful nonimmigrant (temporary) classification. There are many nonimmigrant classifications, and they come in different shapes, only some of which require the holder to maintain her domicile outside the United States.

As the Supreme Court has observed, "Although nonimmigrant aliens can generally be viewed as temporary visitors to the United States, the nonimmigrant classification is by no means homogeneous with respect to the terms on which a nonimmigrant enters the United States." Elkins v. Moreno, 435 U.S. 647, 648 (1978) (holding that admission in nonimmigrant G-4 status as the child of an international organization employee permitted the covered alien to establish domicile in Maryland for in-state tuition purposes as a matter of federal law). In a follow-up decision, Toll v. Moreno, 458 U.S. 1 (1982), the Court struck down a Maryland rule that limited resident-tuition status to U.S. citizens and green card holders. It held that the provision violated the Constitution’s Supremacy clause by unreasonably burdening G-4 aliens, a class of persons whose nonimmigrant status, unlike certain others defined by Congress, permits them to establish a domicile in the United States.

Under the rules of the State University of New York (SUNY), aliens in a nonimmigrant visa status that prohibit them from establishing residence in the United States are ineligible for in-state tuition. SUNY Administrative Procedures Manual 010.1. SUNY thus exacts full-tuition rates from all nonimmigrants except those in A (diplomatic personnel), E (treaty traders and investors), G (international organization employees), I (international media representatives), and L (intracompany transferees) statuses.

These SUNY rules are out of date, at least as they apply to nonimmigrants classified H-1B (as workers in a specialty occupation) and now V (spouses of permanent residents whose applications for permanent residence have been delayed). Congress specifically excepted these nonimmigrants, along with those in L classification, from the burden of establishing that they do not intend to make the United States their home. See INA § 214(b), (h), 8 U.S.C. § 1184(b), (h). And nonimmigrants in these categories need not have a "foreign residence which [they have] no intention of abandoning." Compare INA § 101(a)(15)(H)(i), (L), (V) with, e.g., INA § 101(a)(15)(B).

A recent decision by the Ninth Circuit illustrates again how the nature of the nonimmigrant classification can govern eligibility for in-state tuition. In Carlson v. Reed, 249 F.3d 876 (May 8, 2001), the court of appeals upheld the refusal of California’s state university to permit a Canadian in TD nonimmigrant status to pay tuition at the lower rates that apply to California residents. A TD is the dependent of a TN, a person granted temporary entry to work in a professional capacity under provisions of the North American Free Trade Agreement (NAFTA) adopted by Congress. NAFTA, as implemented for U.S. admissions by regulations of the Immigration and Naturalization Service (INS), defines temporary entry as entry without the intention to establish permanent residence. See 8 C.F.R. § 214.6.

Applying the Toll analysis, the court found that the California rule violated neither the Supremacy Clause of the Constitution nor the Due Process and Equal Protection clauses of the Fourteenth Amendment. Unlike the G-4 classification in Toll, the court noted, the TN/TD classification does preclude the holder from establishing residence in the United States, and is an adequate basis for the tuition burden that California imposes. The court also rejected the argument that the California rule invidiously discriminates against TN/TD personnel vis-à-vis those in the R-religious worker-category, who are permitted to pay in-state rates. It found that although religious workers may not stay indefinitely, nothing in the immigration law prevents them from making California their home while they are here.

As to students who are undocumented, two federal provisions enacted in 1996 bear on whether they can qualify for the lower tuition rates that state university systems charge their own residents. At least on their face, they leave the universities no choice but to charge them full freight.

One of these provisions is 8 U.S.C. § 1623, which makes undocumented aliens ineligible for certain state and local public benefits, including post-secondary education benefits that are not available to a citizen who resides in another state "without regard to whether the citizen . . . is such a resident." The other provision, 8 U.S.C. § 1621, also bars undocumented aliens from certain state or local public benefits, such as post-secondary education. It permits any state, however, to override this provision by later legislative act.

Even before the two federal provisions, many public universities denied undocumented students the lower tuition available to their other state residents. The State University of New York (SUNY) was originally not among them. However, in 1998 SUNY updated section VII of its tuition policy to reflect the enactment of 8 U.S.C. § 1623. See Ellen Badger & Stephen Yale-Loehr, They Can’t Go Home Again: Undocumented Aliens and Access to U.S. Higher Education, 5 Bender’s Immigr. Bull. 413, 415-16 (May 15, 2000). Under the tuition rules of the City University of New York (CUNY), on the other hand, undocumented students who otherwise meet the residence requirements still pay no more than other New Yorkers.

A bill just passed by the legislature of Texas, and awaiting Governor Rick Perry’s signature, would give aliens the same opportunity to qualify for in-state tuition as a U.S. citizen, "without regard to the immigration status of the individual." Texas H.B. No. 158. (It excepts, however, an alien whose visa status doesn’t allow her to establish a U.S. domicile.) As a later-enacted state law, H.B. No. 158 would override the bar contained in 8 U.S.C. § 1621, as § 1621 specifically allows. Testifying in support of the bill on March 13, Michael A. Olivas, a professor of higher education law at the Houston University Law Center and an immigration scholar, argued that its provisions would not offend 8 U.S.C. § 1623. Whether or not they theoretically would, the INS does not seem to be in a hurry to implement the 1996 federal restrictions, and such a state law is unlikely to provoke a challenge otherwise.

H.R. 1918, the federal bill just introduced in Congress, would explicitly repeal 8 U.S.C. § 1623, removing one of the federal impediments to charging undocumented students tuition at in-state rates. (A state could remove the other impediment by passing an act like Texas’s H.B. No. 158 that expressly overcomes § 1621, permitting it to disregard a student’s undocumented status.) The congressional bill, co-sponsored by House Democrats Howard Berman and Lucille Roybal-Allard of California and Republican Chris Cannon of Utah, would grant even more fundamental relief. It would make covered students eligible for cancellation of removal and adjustment of status to lawful permanent resident under INA § 240A, 8 U.S.C. § 1229b. Students adjusted under this provision or whose application is pending would also become eligible for federal educational assistance.

Eligibility is available under H.R. 1918 to an individual who:

• has not yet reached the age of 21 at the time of application;
• was physically present in the United States when the law was enacted and for a continuous period of at least five years immediately before the application (excepting "brief, casual and innocent absences");
• has been a person of good moral character during that period; and
• is enrolled in the United States at a school at or above the 7^th grade level or at an institution of higher education (college or university level).

The bill would give the INS 120 days after enactment to issue implementing regulations. The regulations would have to include a procedure by which applicants may seek this relief without placing themselves in removal (deportation) proceedings.

The bill contains two grandfathering provisions. The first treats a student who becomes 21 after the law is enacted as being under 21 for 120 days after the INS promulgates its regulations. The second considers the age, physical presence, and enrollment requirements as met if the individual could have met them at any time during the 4-year period before the law’s enactment. This provision, however, applies only to someone who at the time of application is enrolled in an institution of higher education or has already graduated.

The statute would be unusual in providing that the Attorney General "shall . . . adjust the status" of an eligible applicant; the decision would not be discretionary. Applicants would only be barred from eligibility for certain crimes of moral turpitude (subject to waiver), and under provisions involving security and related grounds.

H.R. 1918 should receive serious consideration. It would free the states to offer in-state tuition to the youngsters who reside within their boundaries and wish to complete their education. And it would lift the stigma of being "illegal" from these students, many of whom are here in undocumented status only because they were brought by their parents while they were still young. The bill is crafted so as not to encourage those who might come enter to exploit its provisions, although there is no evidence that education has ever been a significant "pull" factor in illegal immigration. Finally, Congress in its last session enacted legislation to increase the number of foreign university-educated workers permitted to enter the United States in temporary H-1B status because it recognized the shortage we face in filling professional jobs. We should do more to encourage our home-grown students to further their education, particularly those students who have suffered the burden of being undocumented.

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* This article originally appeared in the June 25, 2001 issue of the New York Law Journal. Copyright © 2001 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer(http://www.millermayer.com/) in Ithaca, New York, and teaches immigration law at Cornell Law School. He can be reached at syl@millermayer.com.