Could a Texas public university charge an F-1 international student more tuition than Texas residents or other nonresident students?

Texas AG Opinion JM-309: F-1 Student Tuition Rates

Plain-English summary

The question was whether Texas public universities could charge students admitted on F-1 visas more than Texas residents or other nonresident students. JM-309 described the issue as whether the state could charge F-1 students “a higher tuition rate at a state university than that charged Texas residents or to other students who are not Texas residents.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

The opinion allowed Texas to charge F-1 students more than resident students. Its summary stated: “The Texas Education Code constitutionally can provide for a higher tuition rate to be charged to foreign students admitted to this country with F-1 visas than the tuition rate charged Texas resident students.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

It did not allow a special rate above the ordinary nonresident rate. The summary said: “The Education Code cannot provide constitutionally for a higher tuition rate to be charged to foreign students with F-1 visas than the tuition rate charged citizens and other alien students who are not Texas residents for tuition purposes.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

The resident-rate distinction rested on the federal conditions of F-1 admission. JM-309 quoted the federal definition as requiring “a residence in a foreign country which he has no intention of abandoning” and temporary entry “solely for the purpose of pursuing such a course of study.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could an F-1 student be denied the Texas resident tuition rate under JM-309?

Yes. The opinion concluded that the Supremacy Clause and Toll v. Moreno did not prevent applying Education Code section 54.057's limitation to people admitted on F-1 visas. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Why did F-1 status matter to domicile?

The federal visa category required temporary entry for study and a foreign residence the student did not intend to abandon. JM-309 stated: “the courts have concluded that a person cannot be lawfully domiciled in this country while holding a student visa.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Could Texas charge F-1 students more than nonresident U.S. citizens?

No. JM-309 said a higher rate for nonresident aliens than for nonresident citizens “would not be upheld by the courts if challenged.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Did F-1 students receive equal-protection coverage while in Texas?

Yes. The opinion stated that an F-1 student attending school in Texas “is present within the state's territorial perimeter and is entitled to the equal protection of the laws of the state.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Did the foreign-residence requirement eliminate equal-protection rights?

No. JM-309 said that the student's foreign residence “does not negate his presence in this country and in this state and does not deny the student the right to equal protection of the laws.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Background and statutory framework

Education Code section 54.051 set different tuition rates for Texas residents and nonresidents. JM-309 stated: “The Texas Education Code provides different rates of tuition at state supported institutions of higher education for students who are residents of Texas and for students who are not residents of Texas.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Section 54.057 allowed certain immigrant aliens to qualify for resident status, while treating other aliens as unable to establish Texas domicile for tuition purposes. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

The opinion also relied on the rule that equal protection applies to people within a state's territorial jurisdiction regardless of citizenship. It stated: “The guarantee of equal protection applies to all persons within the territorial jurisdiction of a state.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Citations and references

• Education Code sections 54.051 and 54.057
• Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)
• Toll v. Moreno, 458 U.S. 1 (1982)
• Elkins v. Moreno, 435 U.S. 647, 668 (1978)
• Anwo v. Immigration & Naturalization Service, 607 F.2d 435, 437 (D.C. Cir. 1979)
• Ambach v. Norwick, 441 U.S. 68 (1979)
• Yick Wo v. Hopkins, 118 U.S. 356 (1886)
• Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938)
• Plyler v. Doe, 457 U.S. 202, 214-15 (1982)
• Attorney General Opinions JM-241 and JM-267 (1984)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0309
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0309.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

April 15, 1985

Honorable Carl A. Parker
Chairman
Education Committee
Texas State Senate
P. O. Box 12068, Capitol Station
Austin, Texas 78711

Opinion No. JM-309

Re: Whether foreign nationals admitted to the United States under an F-1 “student” visa may be charged a higher tuition rate at a state university than that charged to Texas residents or residents of another state

Dear Senator Parker:

You inquire whether the constitutional questions discussed in Attorney General Opinions JM-267 (1984) and JM-241 (1984) prevent charging foreign nationals admitted to this country with F-1 student visas a higher tuition rate at a state university than that charged Texas residents or to other students who are not Texas residents. The latter group includes out-of-state students who are citizens of the United States and students who are aliens with visas other than an F-1 visa. It is our opinion that the state may charge foreign students with F-1 visas a higher rate of tuition than it charges students who are Texas residents but may not charge such foreign students a higher rate of tuition than it charges students who, for tuition purposes, are not Texas residents.

The Texas Education Code provides different rates of tuition at state supported institutions of higher education for students who are residents of Texas and for students who are not residents of Texas. See Educ. Code §54.051. The constitutionality of that distinction is not questioned. See Note, The Constitutionality of Nonresident Tuition, 55 Minn. L. Rev. 1139 (1971).

Attorney General Opinion JM-241 discussed the applicability of the United States Supreme Court decision in Toll v. Moreno, 458 U.S. 1 (1982), to the provisions of section 54.057 of the Education Code. That section of the Education Code provides that two groups of immigrant aliens may qualify for resident status and resident tuition in Texas, namely, those with a visa permitting permanent residence and those who declare their intention to become United States citizens. By implication, section 54.057 states that all other aliens, including all nonimmigrant aliens, are precluded from establishing that their domicile is Texas and that they are in fact Texas residents who qualify for resident tuition. We concluded in Attorney General Opinion JM-241 that the Supremacy Clause of the United States Constitution, as interpreted by Toll v. Moreno, prohibits a state from denying certain categories of nonimmigrant aliens the right to qualify for resident tuition when such nonimmigrant aliens can show that they meet the standards for resident status required of citizens. We also conclude that the decision in Toll v. Moreno does not apply to a nonimmigrant alien in this country under an F-1 visa because that is one of the categories for which Congress expressly conditioned admission to this country on conditions which have the effect of precluding the establishment of a domicile in the United States. The Immigration and Nationality Act (8 U.S.C. §1101(a)(15) (1982)) defines an alien with an F-1 visa as

an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States. . . .

Although the word domicile is not defined in the Immigration and Nationality Act, it generally is accepted that domicile is not established unless the person intends to establish a permanent abode or reside indefinitely in a location. In order to qualify for an F-1 student visa, the alien must “enter the United States temporarily and solely for the purpose of pursuing such a course of study” and must maintain “a residence in a foreign country which he has no intention of abandoning.” Hence, the courts have concluded that a person cannot be lawfully domiciled in this country while holding a student visa. See Elkins v. Moreno, 435 U.S. 647, 668 (1978); Anwo v. Immigration & Naturalization Service, 607 F.2d 435, 437 (D.C. Cir. 1979). Because the Immigration and Nationality Act does not impose such restrictions on every nonimmigrant class, the courts interpret the act to mean that Congress intended to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile. See Toll v. Moreno, 458 U.S. at 14.

Accordingly, it is our opinion that the Supremacy Clause of the United States Constitution as interpreted by Toll v. Moreno does not prevent the application of the limitations in section 54.057 of the Education Code to persons admitted to this country with F-1 student visas. We conclude that the Education Code constitutionally can provide for a higher tuition rate to be charged to foreign students with F-1 visas than the tuition rate charged students who are Texas residents for tuition purposes.

In Attorney General Opinion JM-267 we concluded that a state statute which provides a higher rate of tuition at state institutions of higher education for nonresident students who are aliens than the rate charged nonresident students who are United States citizens would not be upheld by the courts if challenged.

The Fourteenth Amendment to the United States Constitution provides that no state may deny to any person within its jurisdiction the equal protection of the laws. The guarantee of equal protection applies to all persons within the territorial jurisdiction of a state regardless of whether a person is a citizen of this country or is a citizen of a foreign country. See Ambach v. Norwick, 441 U.S. 68 (1979); Yick Wo v. Hopkins, 118 U.S. 356 (1886). The obligation of a state to provide the protection of equal laws is imposed by the Constitution on the state with each state responsible for its own laws establishing the rights and duties of persons within its borders. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938). Congressional debate concerning the resolution which became the Fourteenth Amendment confirms the intention to make its provisions applicable to all who “may happen to be” within the jurisdiction of a state. See Plyler v. Doe, 457 U.S. 202, 214-15 (1982). In concluding that illegal aliens may claim the benefits of the Fourteenth Amendment's guarantee of equal protection, the Supreme Court in Plyler v. Doe stated

[t]hat a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction, either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States, he is entitled to the equal protection of the laws that a State may choose to establish.

Id. at 215.

A person of foreign nationality with an F-1 student visa who is attending school in this state is present within the state's territorial perimeter and is entitled to the equal protection of the laws of the state. The fact that the student has a “residence in a foreign country which he has no intention of abandoning” does not negate his presence in this country and in this state and does not deny the student the right to equal protection of the laws.

Additionally, we concluded in Attorney General Opinion JM-267 that the courts would not allow a state subtly to affect the country's international relations or foreign policy or to interfere with the federal government's exclusive right to control the immigration and admission of aliens to this country. In Elkins v. Moreno, 435 U.S. 647, the United States Supreme Court determined that Congress defined the nonimmigrant classes of aliens in the Immigration and Nationality Act to provide for the needs of international diplomacy, tourism, and commerce.

It is our opinion that the constitutional problems discussed in Attorney General Opinion JM-267 are applicable to foreign students admitted to this country with F-1 visas and would render unconstitutional a state statute which provides for a higher rate of tuition to be charged to foreign students with F-1 visas than the rate charged to citizens and aliens with other categories of visas who are subject to the payment of nonresident tuition because they are not Texas residents eligible for resident tuition in this state.

SUMMARY

The Texas Education Code constitutionally can provide for a higher tuition rate to be charged to foreign students admitted to this country with F-1 visas than the tuition rate charged Texas resident students. The Education Code cannot provide constitutionally for a higher tuition rate to be charged to foreign students with F-1 visas than the tuition rate charged citizens and other alien students who are not Texas residents for tuition purposes.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton