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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Dysfunctional Immigration Policy Strikes California's In-State Tuition Program

by James T. Daly

California universities are gearing up for a possible constitutional showdown as a result of a class action lawsuit filed in Yolo County California challenging the policy of the California university system that grants in-state tuition to illegal aliens. The lawsuit, filed by a group of out of state students and parents, argues that Californiaís in-state tuition policy conflicts with a federal law that prohibits granting in-state tuition to illegal aliens while charging non-state residents a higher tuition. The annual difference between in-state tuition and out of state tuition can sometimes be as high as $15,000-20,000 per year.

THE CALIFORNIA STATE LAW

In 2001, California passed AB 540 which says that students wishing to attend California universities will be able to pay in-state tuition if the student has:

(1) Attended a California high school for 3 years and;

(2) Graduates from a California high school (or passes the equivalency examination).

If it is discovered that the student is unlawfully in the United States, then the student must sign an affidavit promising to apply for legal status as soon as the student is able. In some cases, a student may never be able to apply for legal status; however, as long as the affidavit is signed, the requirement is met. Dysfunctional? Of course!

THE FEDERAL LAW

Title 8, Section 1623 of the United States Code, states that an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit without regard to whether the citizen or national is residing in the State.

As usual in the dysfunctional world of immigration, there are two distinctly different views.

On one hand, there is the argument that individuals illegally in the country should not receive any type of benefit. Schools have limited resources and those resources should be used to benefit students here legally. Ironically, international students who follow the law and enter with student visas are usually rewarded with tuition fees that exceed the fees of both in-state and out of state tuition!

On the other hand, many of the illegal aliens were brought here as very young children. These children have lived in the United States for many years and have only attended schools here. Many have no ties to their country of birth. Many of these children are able to afford in-state tuition but are unable to afford the more expensive out of state tuition.

AB 540 was intended to benefit all children who grew up in California and want to go to a California college, regardless of immigration status. For instance, say a student graduates high school in California and the studentís family moves to Colorado. The student wants to go to college in California. Under AB 540, the student would still be eligible for in-state tuition even though the family now resides outside of California. Conversely, a student who graduated from high school in Colorado and wants to attend college in California will not be eligible for in-state tuition. AB 540 is applied equally to all.

Until the United States defines its immigration policy, we will continue to have the dysfunctional immigration system that affects all of us.


About The Author

James T. Daly practices immigration law in Santa Barbara California. He is a member of the American Immigration Lawyers Association, Santa Barbara County Bar Association, Los Angeles County Bar Association and the American Bar Association. He has appeared on television locally discussing various immigration issues.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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