Policy Guidelines for Determining Residency of Aliens

Pamela P. Willeford

CHAIR

Martin Basaldua, M.D.

VICE CHAIR

Jodie L. Jiles

SECRETARY OF THE BOARD

William C. Atkinson

Dolores Hutto Carruth, M.D.

Ricardo G. Cigarroa, M.D.

Kevin P. Eltife

Raul B. Fernandez

Robert I. Fernandez

Cathy Obriotti Green

Gerry Griffin

Carey Hobbs

Steve Late

Adair Margo

Leonard Rauch

Hector de J. Ruiz, Ph.D.

Robert W. Shepard

Terdema L. Ussery II

Don W. Brown

COMMISSIONER

OF HIGHER EDUCATION

512/ 427-6101

Fax 512/ 427-6127

Web site:

DATE:March 7, 2001

TO:Registrars

Admissions Officers

Chief Fiscal Officers

FROM:Don W. Brown

SUBJECT:Policy Guidelines for Determining Residency of Aliens – 3rd Memo

During the past year, we have completed an extensive review of the statutes, rules and Attorney General Opinions dealing with the ability of aliens to establish residency for tuition purposes in Texas. Based on these studies, we have issued two memoranda dealing with this subject. The first was dated August 11, 2000; the second was dated December 15, 2000.

Although we dislike being redundant, we feel it is best that all policy decisions be housed in one document, so we are sending you this memo to (1) recap the information included in the earlier memos and (2) add recently received information (shown in bold type) that further clarifies the process, documents and visa types related to classifying aliens for tuition purposes.

Effective Date of Policy Changes

The policies included in this memo are in effect at this time. We realize that many institutions are beginning to register students and make residency determinations for the summer and fall semesters. We ask you to make adjustments for eligible students who provide proof that they qualify for residency under these criteria.

The guidelines are presented in a table that includes the current Board rule, identifies any changes in the way that rule has previously been interpreted, and describes the documentation needed to prove that a student qualifies for residency.

Students Whose Visa Classifications Change

Many institutions have advised us that some students allowed to register as residents based on their visa classifications at the beginning of the Fall term now hold visas that do not allow them to domicile in the United States (for instance, they changed from an L-2 to an F-1 visa). In our December memo we said that since these changes can apparently occur at any time, you should check the CURRENT status of your non-immigrant alien students prior to each semester to make sure they are currently holding an eligible visa type before you classify them for a specific term.

We recently met with our Residency Advisory Committee, and it was pointed out that each student signs an oath of residency when he/she is admitted, which includes a

Memorandum

March 7, 2001

Page two

commitment to advise the college if his/her residence status changes. Therefore, we now advise you that when a student advises you of a change, you must act on it. However, you are not obligated to check each student each semester.

As in our August memo, we are including two appendices that clearly identify the eligible visa categories and the steps in the application process for permanent residency. We hope that this will enable you and your staff to identify qualified students more easily.

As always, if you have any questions, please call us.

Enclosures

cc:Chancellors and Presidents, Public Institutions of Higher Education

Policy Guidelines

for Alien Students to Establish Residency for Tuition Purposes

BACKGROUND

Basic Residency Requirements

According to Texas Education Code '54.052 and Coordinating Board Rules '21.39, all individuals and families coming to Texas must meet the following basic residency requirements before they can be considered residents for tuition purposes. The following requirements are for the student if he/she is independent or for the parent, if the student is a dependent:

1.Residence in Texas for at least 12 months;

1. Establishment of a domicile in Texas (12 months’ physical presence in the state with the intent to make it your permanent home); and,

3.Gainful employment in the state for 12 months.

Additional Requirement for Alien Students

Texas Education Code '54. 07 provides:

“Aliens. An alien who is living in this country under a visa permitting permanent residence or who has filed with the proper immigration authorities a declaration of intention to become a citizen has the same privilege of qualifying for resident status for fee purposes under this Act as has a citizen of the United States . . . “

Attorney General Opinion JM-241 provides:

“Under the Supremacy Clause of the United States Constitution, aliens who are permitted by Congress to adopt the United States as their domicile while they are in this country must be allowed the same privilege as citizens and permanent residents of the United States to qualify for Texas residency for purposes of tuition at state universities, despite the limitation in section 54.057 of the Texas Education Code.”

CURRENT COORDINATING BOARD RULES, NEW GUIDELINES, AND DOCUMENTATION

Rules, Policies and Documentation. The following table is a presentation of current Coordinating Board Rules regarding residency for alien students. New information (as of February 2001) is shown in bold type.

1

Rules, Policies and Documentation

for Alien Students to Establish Residency for Tuition Purposes

Current Rule / Policy Changes or Additions / Documents
21.33 (a). Aliens living in the United States under a visa permitting permanent residence, and aliens who are permitted by Congress to adopt the United States as their domicile while they are in this country and aliens who have filed with the proper federal immigration authority a declaration of intent to become a United States citizen have the same privilege of qualifying for Texas resident status for tuition purposes as do citizens of the United States. The Immigration and Naturalization Service has identified the following categories of foreign students as being eligible to establish domicile in the United States, however, if an individual provides proof from the Department of Justice or Immigration and Naturalization Service that the visa he/she holds has been granted eligibility to establish a domicile in the United States, such individuals may be granted the same privileges in establishing Texas residency for tuition purposes. / Earliest Point of Eligibility
(1) If an Immediate Relative is the alien’s sponsor, an individual may be treated like a permanent resident as soon as his or her Notice of Action Taken[1]or fee/filing receipt is issued by INS and the individual files a visa petition and/or an Application to Register Permanent Residence or Adjust Status.
(2) If Other Relatives or Employers are the alien’s sponsors, an individual may be treated like a permanent resident when his or her Notice of Action Taken1or fee/filing receipt is issued by INS, the priority date is reached, AND the individual files an Application to Register Permanent Residence or Adjust Status.
(3) If an individual files an application for cancellation of removal or adjustment of status under the Nicaraguan and Central American Relief Act (NACARA), Haitian Refugee Immigrant Fairness Act (HRIFA) or the Cuban Adjustment Act, and has been issued a fee/filing receipt or Notice of Action by INS, he/she may be treated as a permanent resident.
(4) If an individual has filed for adjustment of status (8USC 1255); or under the “registry” program (8 USC 1259); or the Special Immigrant Juvenile Program, and has been issued a fee/filing receipt or Notice of Action by INS he/she may be treated as a permanent resident. / Permanent residence may be documented by (1) a passport stamp with a notation that lawful permanent residence, or conditional permanent residence has been granted; (2) Form I-94 with a notation that lawful permanent residence or conditional permanent residence has been granted; (3) a court order from the immigration judge or the Board of Immigration Appeals (BIA), granting cancellation of removal, registry, adjustment of status or conditional permanent residence; (4) an order from INS [or the Board of Immigration Appeals] granting registry or adjustment of status; (5) a fee receipt from INS for an application for: adjustment of status; registry; a visa petition (plus proof of current availability of visa); NACARA, HRIFA or Cuban Adjustment Act benefits; (6) I-551 (resident alien card) or document showing extension of this card; (7) letter from INS showing approval under the visa diversity (lottery) program.
Notice of Action Taken is a document issued by INS when a sponsor’s Petition for an alien has been approved.
The Application to Register Permanent Residence or Adjust Status is form I-485.
The application for cancellation of removal or adjustment of status under NACARA is form I-881.
Applications for registry, cancellation of removal, NACARA, HRIFA, and Cuban Adjustment Act are all applications for permanent residence.
Eligibility of a nonimmigrant to domicile in the U.S. is documented by a visa of an approved type (see list in Appendix 2).
Current Rule / Policy Changes or Additions / Documents
(1) Holders of visas with A-1, A-2, G-2, G-3, G-4, K, OP-1classifications; and / Add the following visa types as eligible to establish a domicile in the U.S.: A-3, E-1, E-2, G-5, H-1B, H-4 dependents of H-1B, I, L-1, L-2, NATO 6, NATO 7, O-1, O-2, O-3, R-1, and R-2. / Visa of the named type.[2]
(2) Individuals classified by INS as Refugees, Asylees, Parolees, Conditional Permanent Residents (holding I-551 cards which have not expired), and Temporary Residents (holding I-688 cards which have not expired). / Add the following groups as eligible to establish residency in Texas: Persons holding Temporary Protected Status; and Spouses and Children with approved petitions under the Violence Against Women’s Act (VAWA )[3]; Special Agricultural Workers; [Applicants for adjustment of status under the Haitian Refugee Immigrant Fairness Act (HRIFA), under the Nicaraguan and Central American Relief Act (NACARA)[4], or under the Cuban Adjustment Act] individuals granted deferred action status by INS. / Visa or I-94 card with appropriate stamp; I-551, I-766 or I-688 cards; order or decision from the Court, the Board of Immigration Appeals, or the INS.
Notice of Action, or letter from INS showing grant of deferred action status.
Current Rule / Policy Changes or Additions / Documents
(b) A declaration of intent to become a citizen, according to the United States Department of Justice, may only be filed by the following four groups: (1) permanent residents; (2) aliens lawfully admitted for temporary residence under section 245 A (a) (1) of the Immigration and Naturalization Act (holders of I-688 cards which have not expired); (3) aliens admitted as refugees; and (4) aliens granted asylum / No change
(c) An individual who enters the state under a visa which does not allow the establishment of a domicile and who obtains permanent resident status while in Texas may not be reclassified for tuition purposes until he or she has been granted permanent resident status and has resided in Texas a minimum of 12 consecutive months from the date on which he or she applied for permanent resident status. / Institutions may consider an alien’s 12-month period to have begun when he or she entered the state. The student must attain the step we refer to on page 2 as ”Earliest Point of Eligibility” before his/her time in Texas is relevant, but once that step is achieved, all time spent in the state may be counted. / Relevant date is the date the student paid a fee to file his/her I-485 Application to Register Permanent Residence or Adjust Status or
I-881 application for Cancellation of Removal or NACARA.
Current Rule / Policy Changes or Additions / Documents
(d) Family Unity Program. A noncitizen residing in Texas under the Immigration and Naturalization Service’s (INS) Family Unity Program may qualify to pay the resident tuition rate.
(1) A noncitizen is eligible to apply for benefits under the Family Unity Program if he or she entered the United States on or before May 5, 1988 and has been residing in the United States since that date; and if he or she was the spouse or unmarried child of a legalized alien at the time of first application. [as of that date and continues to be so.]
(2) An individual proving his/her eligibility should provide an institution two Immigration and Naturalization Service forms I-797, one which indicates an INS-approved “Application for Voluntary Departure under the Family Unity Program,” and the other which must indicate either an INS-approved “Immigration Petition for Relative” or a “Visa Petition for Spouse.” / No changes.
Current Rule / Policy Changes or Additions / Documents
Family Unity (con’t.)
Since INS may cancel eligibility for the Family Unity Program at any time, it is necessary that institutions confirm the student’s current INS status each time he/she registers.
(3) To [comply with the provisions of the Family Unity Program and] qualify to pay resident tuition rates at Texas institutions, the parent or spouse must have established a domicile in the State of Texas. / No changes.
Undocumented Aliens. Although these students are eligible to attend public institutions of higher education in Texas, they must be considered nonresidents for tuition purposes.

1

Appendix 1

Earliest Point of Eligibility for Aliens Applying for Permanent Residency

Coordinating Board staff reviewed the process of applying for permanent resident status to identify the earliest point in time when an individual applying for permanent residence has a legal right to permanent residency. The steps for applying for permanent residency are different for persons being sponsored by an immediate relative, other family members, or by employers; therefore, the point in time when the individual qualifies for residency differs.

INS identifies the following groups as AImmediate Relatives:@

$Spouses of U.S. citizens. This includes widows and widowers of U.S. citizens if they were married to the U.S. citizen for at least two years and are applying for a green card within two years of the U.S. citizen=s death;

$Unmarried people under the age of 21 who have at least one U.S. citizen parent;

$Parents of U.S. citizens, if the U.S. citizen child is over the age of 21;

$Stepchildren and stepparents, if the marriage creating the stepparent/stepchild relationship took place before the child=s 18th birthday, or

$Parents and children related through adoption, if the adoption took place before the child reached the age of 16.

Listed below are the sequences that aliens, sponsored by immediate relatives, other relatives or by employers, must follow to obtain permanent residency. The point at which the individual qualifies for residency for tuition purposes is identified.

Aliens Sponsored by Immediate Relatives

(No Quota set by INS)

1)U.S. citizen family member files a Petition for Alien Relative (I-130).

2)(Optional) INS issues a Notice of Action Taken (I-797), indicating the petition has been approved.[5]

3)The sponsored alien files an Application to Register Permanent Residence or Adjust Status (I-485). [Student can be treated as if permanent resident status has been granted.]

4)INS processes the Application.

5)INS issues the Alien Resident Receipt Card.

Aliens Sponsored by Other Relatives

(Subject to Quotas set by INS)

1)U.S. citizen family member files a Petition for Alien Relative (I-130).

2)(Optional) INS issues a Notice of Action Taken (I-797), indicating the petition has been approved.

3)The alien is placed in a queue, based on his/her Apriority date,@ (the date of his petition) and waits for a visa number to become available through the quota system.

4)The priority date reaches the top of the quota queue, and the alien acquires a visa number.

5)The alien files an Application to Register Permanent Residence or Adjust Status (I-485). [Student can be treated as if permanent resident status has been granted.]

6)INS processes the Application.

7)INS issues the Alien Resident Receipt Card.

Aliens Sponsored by Employers

(Subject to Quotas set by INS)

1)U.S. employer files Labor Certification papers with the U.S. Department of Labor.

2)U.S. employer files an Immigrant Petition for Alien Worker (I-140).

3)INS issues a Notice of Action Taken (I-797), indicating the petition has been approved.

4)The alien is placed in a queue, based on his/her “priority date,” (the date of his/her petition) and waits for a visa number to become available through the quota system.

5)The priority date reaches the top of the quota queue, and the alien acquires a visa number.

6)The alien files an Application to Register Permanent Residence or Adjust Status (I-485). [Student can be treated as if permanent resident status has been granted.]

7)INS processes the Application.

8)INS issues the Alien Resident Receipt Card.

______

6 In our August 11 memorandum and in an announcement made via the TACRAO list serve on November 14, we indicated that an individual who has filed an I-30 (Petition for Alien Relative) just wait until an I-797 (Notice of Action is Taken) is issued by INS before you can treat him/her as if she has been granted permanent resident status. We have recently found out that INS District Offices do not issue I-797s. Therefore, in order to treat these students fairly, we are CHANGING our requirements and advise you that if a student provides you with a fee receipt that indicates that he or she has been allowed to file an I-485, you may treat the student as if he or she has been granted permanent resident status. All you need to do is check for 12 months’ presence in the state and the establishment of domicile in Texas.

1

Appendix 2

Nonimmigrant (Temporary) Visa Categories

In the table that follows, a “Yes **@ in the third column indicates a visa classification that under this new policy is now being recognized as eligible to establish a domicile in the US. If a person is eligible to domicile in the United States, the person is eligible to establish residency for tuition purposes in Texas.

NOTE: Changes Have Been Made this Year Regarding O and H-4 Visa Holders

In August 2000 we indicated holders of H-4, O-2 and O-3 visa holders were ineligible to domicile in the United States. In December 2000 we announced that O-2 visa holders and their immediate family members holding O-3 visas are NOT eligible to establish a domicile in the United States. O-1 visa holders and their immediate family members with O-3 visas ARE eligible.

We also stated in December that holders of H-4 visas are eligible to domicile in the United States ONLY IF they are a child of an individual who holds a H-1B visa. THIS WAS AN INACCURATE STATEMENT. Holders of H-4 visas are eligible to domicile in the United States IF they are a dependent (which, by federal definition includes children AND spouses) of H-1B visa holders. These changes and corrections are incorporated into the list of visas provided in the attached Nonimmigrant (Temporary) Visa Categories table.