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Federal Legislation

Thus far, no law or court ruling has expressly denied undocumented immigrants admittance to institutions of higher education. Nonetheless, federal and state governments have indirectly addressed access by enacting laws that deny undocumented students access to financial aid and in-state tuition rates. These statutes are the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)

8 U.S.C. § 1621. “An alien…is not eligible for any State of local public benefit…The term ‘State or local public benefit’ means…any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household or family…by an agency or State or local government…”


Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) as part of a larger Clinton-era effort to reform welfare; however, the legislation also prominently addressed undocumented immigrants. The Act’s passage accompanied “intensive anti-immigrant propaganda” and “anti-immigrant initiatives.” In fact, the strong anti-immigrant rhetoric of the time precipitated an unintended 71 percent drop in welfare applications from legal and otherwise eligible immigrants, who were later suspected by policy analysts of “mistakenly believ[ing] they [were] no longer eligible” due to the fervor surrounding the Act’s intended impact on the undocumented.


In current immigration law, PRWORA denies undocumented immigrants access to federal, state and local public benefits, such as retirement, welfare, healthcare, disability, assisted-housing, education aid, or food-assistance. Regarding education, the term “benefits” includes “postsecondary education…or any other similar benefit for which payments or assistance are provided.” Thus, the Act focuses solely on monetary assistance and does not specifically address attendance.


Additionally, the Act only excludes “non-qualified aliens” from receiving benefits. If state or federal governments enact legislation expressly granting undocumented students qualified status, they would be allowed access to benefits under PRWORA.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)

8 U.S.C. § 1623. “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 (in no less amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

Passed during the same wave of Clinton-era policy aimed at reducing dependence on welfare, fiscal responsibility and anti-immigrant sentiment, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) affects in-state tuition requirements for undocumented students. Specifically, section 505 of IIRIRA makes illegal aliens ineligible for postsecondary benefits based on residency — namely in-state tuition rates — unless all citizens of the United States would also be eligible for that benefit. In other words, if an institution of higher education grants undocumented students in-state tuition, it must also offer that same tuition rate to all U.S. citizens, regardless of whether they live in- or out-of-state. State universities that allow undocumented students in-state tuition therefore loose additional financial support from out-of-state students — a heavy incentive to make undocumented students ineligible.


The Act’s effect on the affordability of college can be drastic. For example, Arizona State University’s in-state residents paid $6,797 of tuition for the 2009–2010 year, compared with an out-of-state cost of $19,382 — a difference of $12,585 a year. Combined with PRWORA’s financial-aid embargo, undocumented students are denied over two-thirds of all financial aid in the United States, leaving only private scholarships and employment to make up the difference.


While no court has found PRWORA or IIRIRA to prohibit states from admitting undocumented students into public postsecondary schools, they significantly limit undocumented students attempting to pay for college. Their affect on the affordability of higher education is undeniable.

The Question of Federal Preemption

In response to federal regulation, many states have chosen to interpret PRWORA and IIRIRA in ways that still allow them to set their own criteria for tuition rates and state benefits. However, the legality of such interpretations remains in question as state courts deliver contradicting rulings.


For example, on November 8, 1994, California voters passed Proposition 187, also know as the “Save Our State” initiative, denying public benefits to undocumented immigrants. The proposition mandated heavier enforcement by requiring that law enforcement, social services, health care and public educational personnel verify the immigration of any suspected persons with whom they come into contact.

In League of United Latin American Citizens v. Wilson (LULAC II), a California district court sought to determine whether federal law preempted Proposition 187. Should Congress intend federal law to have complete regulatory control over illegal alien benefits, any state law that set a different standard for enforcement would be preempted and annulled. Therefore, the court investigated whether Congress’ intent in passing PRWORA and IIRIRA amounted to “complete federal control or occupancy of the field that the state law regulates.”


In its inquiry, the court employed a three-part preemption test established by the Supreme Court in DeCanas v. Bica. Known collectively as the DeCanas test, the test preempts state law if the statute in question: (1) attempts to regulate an “exclusively…federal power;” (2) if Congress intends “complete federal control or occupancy of the field that the state law regulates, even if the state law does not conflict with federal law;” and (3) if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”


Applying the three tests, the court ruled California’s Proposition 187 invalid under the second DeCanas test. The court interpreted PRWORA to be a “sweeping statement by Congress” and to express Congress’ intention take “full control of the field of regulation of public benefits to aliens.” It also ruled that because PRWORA and IIRIRA are comprehensive, “states lack the power to legislate in the area of public benefits for undocumented immigrants.”


In spite of LULAC II’s ruling, states hardly agree on the issue of preemption. Seven years after LULAC II, a Virginia district court came to the opposite conclusion, finding no basis for preemption. In Equal Protection v. Merten, plaintiffs challenged a policy set by the State’s Attorney General that denied college admission to undocumented immigrants. They alleged that the policy was unconstitutional based on its violation of the Supremacy, Commerce and Due Process Clause. Plaintiffs further challenged the legality of the Attorney General’s encouragement of educational officials to report suspected undocumented students to immigration authorities.


The Merten court used the same DeCanas test but found no basis for preemption. Under the first test, the court found a state may implement a policy denying admission to undocumented immigrants “provided that in doing so, the institutions implementing the policy adopt federal immigration standards.” Since Virginia law adopted federal standards in their policy, the court saw no justification for preemption.


In regard to the second test, the court denied LULAC II’s use as precedent, saying that “LULAC II is neither controlling nor persuasive.” The court pointed out PRWORA’s exclusive regulation of financial benefits — it only addresses postsecondary aid: “monetary assistance…not admissions.” Contrary to LULAC II, the Merten court found that Congress “has failed to legislate in this field at all and thus has not occupied any part of it, completely or otherwise.” Further, the court concluded section 1623 left much to the individual states to decide in legislation. Thus, neither PRWORA nor IIRIRA preempted Virginia policy.


LULAC II and Merten interpret the issue of federal preemption in completely opposite ways, illustrating the law’s current ambiguity. It remains unclear whether states can set their own criteria for enforcement of immigration laws, and the extent of the federal government’s control over state benefits. As a result, state policies that regulate undocumented students’ admission to college and access to state financial aid vary widely from state to state, from outright prohibition to express access.


However, the two cases deal only with whether federal legislation controls the manner in which states determine admittance for undocumented students applying to college — in other words, their eligibility status for certain state benefits. It is unquestioned that institutions of higher learning themselves can admit undocumented students under PRWORA and IIRIRA.

4: Interpretation of In-state Tuition

Another contentious interpretation of PRWORA and IIRIRA comes from federal restriction of in-state tuition benefits. PRWORA and IIRIRA do not provide air-tight prohibition of in-state rates because they fail to address the manner in which states determine residency. Uncertainty arises from unqualified use of the term “benefit” in both acts, raising questions of whether state residency status can be considered a benefit. States sympathetic to undocumented students can choose to interpret the term in a way that grants in-state tuition.


Three interpretations have emerged for the term “benefit”: (1) regulation of only monetary benefits such as scholarships or financial aid, (2) regulation of status benefits such as residency status for tuition purposes, or (3) regulation of both. If the acts only regulate monetary benefits, states are free to determine their own criteria for residency. However, if the acts regulate residency, states would be reluctant to grant benefits to undocumented students because to do so, they would have to pass a law affirmatively giving undocumented students residency and, due to IIRIRA, offer in-state tuition to all U.S. citizens, regardless of their state residency status.
For the purposes of its ruling, the Virginia district court in Merten interpreted the term “benefit” as monetary aid, but failed to address the in-state residency distinction directly. According to its interpretation, “public benefits” mean only monetary benefits, an interpretation most likely springing from section 1621’s qualification of benefits to include “any…benefit for which payments or assistance are provided.” In addition, section 1623 measures “postsecondary education benefits” in terms of “amount, duration, and scope” — terms that appear to imply monetary regulation. In-state residency status is not a monetary benefit; it is a status categorization. Therefore federal law under the Merten court’s interpretation would not regulate it. However, the Merten ruling does not extend to the question of residency, and thus the issue remains unresolved.


Should a federal court rule in favor of state authority using an interpretation similar to Merten, states would be free to determine their own in-state residency requirements — an approach several states already employ. In this way, undocumented students can be granted in-state residency based on criteria determined by the state, allowing for much greater flexibility and the opportunity to qualify for lower tuition rates.