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Financial Aid and Scholarships for Undocumented Students

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This page contains information about financial aid and scholarships for undocumented students and illegal aliens. (The terms "undocumented student", "illegal alien", and "illegal immigrant" are used interchangeably and intentionally in this page to enable this page to be found by students who are trying to find information about scholarships for undocumented students.) This page provides a neutral, objective and comprehensive summary of this topic.

Financial aid is generally not available for undocumented students and illegal aliens. The majority of all student aid, including Federal student aid, requires the recipient to be a US citizen or permanent resident (green card holder) or an eligible non-citizen. There are, however, a few states that allow undocumented students to qualify for in-state tuition rates. There are also several private scholarships available to undocumented students.

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In-State Tuition

There is a conflict between Federal and State law regarding the eligibility of undocumented students for in-state tuition rates.

Federal law passed in 1996 prohibits illegal aliens from receiving in-state tuition rates at public institutions of higher education. Specifically, Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Title 8, Chapter 14, Sec. 1623(a)) states: "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident."

Several states -- Texas, California, New York, Utah, Illinois, Washington, Nebraska, New Mexico, Maryland (community colleges), Oklahoma, Wisconsin and Kansas -- have passed state laws providing in-state tuition benefits to illegal aliens who have attended high school in the state for three or more years. Similar legislation is pending in Florida, Hawaii, Massachusetts, Minnesota, New Hampshire, New Jersey, North Carolina, Oregon, South Carolina, Tennessee and Virginia. (Connecticut also passed such a law, but the governor vetoed it.) The Nevada system of higher education does not consider immigration status for in-state tuition, but does require it for a state-sponsored scholarship. Also, some schools in Georgia provide in-state tuition benefits to illegal aliens. The Texas law also allows illegal aliens to receive state student financial aid.

These state laws attempt to circumvent the federal law by simply not asking students whether they are in the US legally. (The California law, AB 540, requires the student to file an affidavit that he/she has filed an application to legalize his/her immigration status or intends to file an application as soon as he/she is eligible to do so. So California doesn't even attempt to maintain the fiction that the school is unaware of the student's immigration status.) They also circumvent the law by basing eligibility for in-state tuition on attendance at or graduation from an in-state high school and not on state residence.

Subsection 8 USC 1621(d) permits states to provide illegal aliens with state and local public benefits provided that a state law is enacted after August 22, 1996 specifically permitting illegal aliens to receive such benefits. However, this subsection makes a potentially limiting reference to subsection 1621(a) and so does not override the restrictions in 8 USC 1623(a). As such, it would appear that the state laws permitting in-state tuition to illegal aliens are not permitted by the federal law.

Arizona, Colorado and Georgia ban in-state tuition for illegal aliens and South Carolina does not allow illegal aliens to enroll in state colleges. Virginia passed a law barring illegal aliens from receiving in-state tuition, but it was vetoed by the governor. The state attorney general then stated that existing state law requires state colleges and universities to charge illegal aliens higher tuition. Legislation to ban in-state tuition for illegal aliens is pending in Alabama, Alaska, Florida, Mississippi, and North Carolina. A bill to ban in-state tuition for illegal aliens was defeated in Arizona in March 2005, but a ballot initiative requiring illegal aliens to pay out-of-state tuition and making them ineligible for state student financial aid (Proposition 300) was passed in November 2006 and went into effect on December 7, 2006. States banning in-state tuition for illegal aliens include Georgia and Colorado. (The Colorado attorney general ruled on August 14, 2007 that Colorado students who were born in the US of illegal immigrant parents may nevertheless pay in-state tuition rates. The argument is that a US citizen -- the student -- is the beneficiary beneficiary of the in-state tuition, not the parents, so the parents' illegal status should have no bearing on eligibility. This follows in the footsteps of a late-2006 settlement between the State Student Assistance Commission of Indiana and the ACLU of Indiana, concerning denial of state scholarships in the Indiana 21st Century Scholars Program to an otherwise eligible US citizen student because of her parents' illegal status.)

The heart of the controversy concerning in-state tuition for illegal immigrants is a conflict between pragmatism, compassion and fairness. On the one hand, why should children of illegal immigrants be punished for violations of immigration law by their parents or for delays caused by INS bureaucracy? Denying illegal aliens in-state tuition rates denies most of them access to a higher education. Many of these students will eventually become legal residents. One can also argue that the cost of not helping these students pursue a higher education is greater than the cost of helping them. Education increases tax revenues and decreases spending on welfare, health care and law enforcement. (The 1997 report The New Americans by the National Research Council found that immigrants -- both legal and undocumented -- with a college education save the government money, while those with just a high school diploma consume more in services than they contribute in taxes.) It seems inconsistent to provide illegal aliens with a free public elementary and secondary school education, only to deny them access to a postsecondary education. This effectively limits them to a life of indentured servitude. On the other hand, why should law-abiding US citizens have to pay higher public college tuition rates than illegal aliens? They too can be helped by lower in-state tuition rates, providing future benefits to the state and the nation. To the extent that in-state tuition rates are intended to provide a benefit to state taxpayers whose tax dollars support state colleges, the tuition breaks for illegal aliens are somewhat inconsistent. (While only 5 percent of undocumented workers file federal income tax returns according to the Mexican Migration Project (MMP), a much larger percentage have taxes withheld from their paychecks. Of the roughly 2,100 undocumented workers surveyed by the MMP, as much as two-thirds report having had federal income taxes withheld from 1997-2002. Other, more conservative studies estimate that about half of undocumented workers have income taxes withheld from their paychecks. It is unclear whether the employers deliver the withheld taxes to the government or are simply pocketing the money. Since very few undocumented workers file income tax returns to obtain a refund, effectively these workers are paying taxes at a higher marginal rate than US citizens. However, a greater percentage of US citizen workers have income taxes withheld and file income tax returns than undocumented workers.) Yet the Federal government also lacks a consistent and enforceable immigration policy, nor the will to devote sufficient resources to enforce existing immigration law.

This controversy is unlikely to be resolved until the US Supreme Court hears a case concerning it. (The most likely test case will be a lawsuit, Day v. Sebelius, filed on July 19, 2004 to challenge a Kansas law (76-731a) that allows children of illegal aliens to pay in-state tuition rates. However, the US Court of Appeals for the 10th Circuit ruled on August 30, 2007 (05-3309) that the plaintiffs lacked standing to challenge the constitutionality of the Kansas law and that the plaintiffs lacked a private right of action to enforce preemption by 8 USC 1623. The court's decision hinged on the plaintiffs failure to demonstrate that they had suffered actual "concrete and nonspeculative" harm from the Kansas law, nor that the injury would be redressed by overturning the law. In particular, even if the court struck the provision allowing illegal alien state residents to qualify for in-state tuition, the plaintiffs would still not be qualified to obtain tuition rates reserved for residents. Likewise, the plaintiffs failed to demonstrate a causal relationship between the benefits accorded to illegal aliens and the tuition charged to nonresident US citizens. As such, their claimed injury is conjectural and hypothetical, and unsupported by evidence. Since the plaintiffs lacked standing to bring their suit, the appeals court did not evaluate whether the Kansas law violates the equal protection clause of the fourteenth amendment or the merits of the preemption claims brought by the plaintiffs.) On December 17, 2007, the 10th circuit court of appeals denied a request for a rehearing before the full court. Most likely the decision will focus on the Equal Protection Clause of the 14th amendment of the US Constitution, as did the decision in Plyler v. Doe, 457 US 202 (1982). It will also likely overturn state laws, regardless of whether they provide in-state tuition to illegal immigrants or ban it, since the authority to regulate immigration belongs exclusively to the federal government. It might also find that offering reduced in-state tuition to state residents is unconstitutional.

It is also possible that the decisions may rest on a technicality concerning the meaning of the word "a". The language in 8 USC 1623(a) bans in-state tuition for illegal aliens "unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident." Does the word "a" mean "any" or "all" or "member of the class of people who are" or does it mean "one"?

Court cases in Kansas and California have also focused on the use of the word 'benefit' in 8 USC 1623, arguing that Congress's intent was to restrict monetary benefits and that in-state tuition is not a monetary benefit but a status benefit. In particular, "state or local public benefit" is defined in 8 USC 1621(c)(1)(B) as benefits for which "payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government" and 8 USC 1623(a) uses the word "amount" in connection with the term "postsecondary education benefit". The crux of the argument is that reduced in-state tuition is not a monetary benefit because payments are never made to the individual or family. However, one could also argue that Congress's intent in passing this law was clearly to prohibit in-state tuition for illegal aliens in addition to state financial aid, and that reduced in-state tuition falls within the scope of the term "assistance".

There is pending legislation in the House and Senate that would repeal the Federal restriction and make college more affordable for illegal aliens. (The original 2003 Senate version of the bill was known as the Development, Relief and Education for Alien Minors (DREAM) Act (S 1545) and the original House version of the bill was known as the Student Adjustment Act (HR 1684). These bills were reintroduced in the 110th Congress as the DREAM Act of 2007 (S.774) and the American Dream Act (H.R.1275), with the latter bundled into the STRIVE Act of 2007 (H.R.1645).) The DREAM Act would permit states to determine state residency for higher education purposes by repealing Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It would also provide a mechanism for undocumented students of good moral character to become legal permanent residents and to qualify for Federal student aid.

Additional information can be obtained from the National Conference of State Legislatures site.

Scholarships

Another potential source of financial aid is private scholarships. There are a few private scholarships for undocumented students that do not require the student to be a US citizen or resident or have a social security number in order to apply. Information about such scholarships can be found in the FastWeb scholarship search. Other good resources include the Mexican American Legal Defense and Educational Fund (MALDEF) (see especially the MALDEF List of Scholarships for Undocumented Students and the MALDEF Scholarships) and the Salvadoran American Leadership and Educational Fund.

Another good resource for California students is Latino College Dollars: Scholarships for Latino Students. This directory directory includes several scholarships that do not require US citizenship and are available to undocumented students.

See also Ayuda Financiera del Estudiante en Español.

Federal Student Aid

If the student is a US Citizen but one or more parents are undocumented, the student is eligible for federal student aid. However, if the parents supply a fake or stolen social security number (SSN) on the form, the student's FAFSA will be rejected when the parent's social security number fails to match. The FAFSA may also be rejected when the parents submit a SSN or Taxpayer Identification Number (TIN) that is valid for work purposes only. If the parents do not have a social security number or the social security number fails the match, they should use 000-00-0000 as their social security number on the FAFSA form.

 

 
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