Laws Relating to Illegal Immigrant Students

In 1996, the illegal immigration reform law instituted a restriction on states’ residency requirements and in-state tuition benefits for higher education. Eleven states subsequently 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, Washington and Wisconsin.  In 2008, Oklahoma ended its support for in-state tuition for students without lawful presence.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) 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).  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.

Proponents of these bills argue that unauthorized immigrant children had no choice in entering the United States illegally, have grown up in the United States, 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 cost 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 would probably 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 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., U.S. citizen can apply for their spouse or an employer can apply for their employee), or through the Diversity Lottery Program.

In June 2001, Texas (HB1403) was the first state to pass legislation allowing in-state tuition for immigrant students, followed by California (AB540), Utah (HB144), and New York (SB7784) in 2001-2002; Washington (HB1079), Oklahoma (SB596)and Illinois (HB60) in 2003; Kansas (HB2145) in 2004; New Mexico (SB582) in 2005; Nebraska (LB239) in 2006; and Wisconsin (A75) in 2009. The state laws permitted these students to become eligible for in-state tuition 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 in all states except New Mexico. These requirements for unauthorized immigrant students are stricter than the residency requirements for out-of-state students to gain in-state tuition.

In 2008, Oklahoma passed HB 1804 which ended its in-state tuition benefit, including financial aid, for students without lawful presence in the United States. The Act allows the Oklahoma State Regents to enroll a student in higher education institutions permitted that they meet special requirements.   Other states that have barred unauthorized immigrant students from in-state tuition benefits include Arizona (Proposition 300, 2006), Colorado (HB 1023, 2006), Georgia (SB 492, 2008), and South Carolina (HB4400, 2008).