Some immigrant children eligible for in-state tuition

U.S.-born students who have always lived in Virginia may be eligible for in-state tuition rates at state colleges and universities even if their parents are in the country illegally.

That is the conclusion of a memo to the State Council of Higher Education for Virginia from Attorney General Bob McDonnell’s office.

The catch is that the opinion only cracks open the door to help certain students, and schools will make decisions on a case-by-case basis. As a result, it’s unclear how many students will benefit.

“We do believe this helps clarify what had been an unclear area for the colleges,“ said Lee Andes, with the council. “I think some of the colleges are being very careful with students with out-of-status parents. They just weren’t sure what to do in their situation.“

In many cases, he said, schools ruled on the side of caution and denied eligibility.

Typically, if a student is still a dependent of his parents, eligibility for in-state tuition is based on the parents’ “domicile” — their primary home and where they plan to remain.

McDonnell’s office opined that if the student was born and raised in Virginia, he may present evidence — such as a high school transcript, a voter-registration card, a driver’s license or other government-issued ID — to establish “domicile” independently and thereby be eligible for in-state tuition.

The memo from McDonnell’s office cautions that “this presumption — that a dependent student has the parents’ domicile — has been treated as an extremely strong presumption in Virginia. Overcoming the presumption is a difficult burden to meet, and instances of overcoming it will be rare.“

But in the case of a U.S. citizen who was born to undocumented parents in Virginia and raised here, however, the student “might well be able to” overcome the presumption with evidence, it continues.

The ACLU of Virginia has taken aim at the interpretation, sending a letter to the presidents of state public universities stating “it is unconstitutional to deny a student in-state tuition based solely on the immigration status of his parents.“

The organization said it is talking to groups affected by the interpretation and is prepared to take legal action.

The flap comes against the backdrop of the latest General Assembly session, in which some state lawmakers pushed for crackdowns on undocumented immigrants including an unsuccessful attempt to block them from attending state universities.

Out-of-state tuition rates can run more than double the in-state rates.

Northern Virginia Community College this year started considering for in-state tuition students who are born in the state and attended and graduated from a school here.

So far it has worked well when students explain their situation, but often students are reluctant to raise their parents’ status with government officials for fear they might be harmed, said Robert G. Templin, Jr., president of the school. Templin said he’s pleased to see the attorney general’s interpretation being circulated to other schools.

“It absolutely confounds me” how state schools could deny a student born and raised in Virginia the ability to be considered eligible for in-state tuition in Virginia, he said. “It absolutely puzzles me what the controversy is about.“

Olympia Meola is a staff writer for the Richmond Times-Dispatch.