When Julieta Garibay first began advocating for immigrant youth in higher education, she had recently graduated with one of the first cohorts of UT undocumented students. At the time, these students could qualify for in-state tuition and financial aid under the 2001 Texas Dream Act.
However, a June federal court order blocked Texas from enforcing this law. Now, undocumented students must provide evidence of lawful presence to qualify for these benefits, according to the Texas Higher Education Coordinating Board.
To comply, the board adopted new rules, which went into effect on Nov. 13, that allow universities to verify student immigration status with a federal agency, which may pose privacy risks, said Garibay, a senior strategist and consultant at the Intercultural Development Research Association, a nonprofit that helps students from underserved communities access public education.
The rules require non-citizen students applying for in-state tuition to submit a residency questionnaire and an affidavit affirming lawful presence. Federal immigration law does not define “lawful presence” — only “unlawful presence,” which refers to any time when a person is present in the country without being admitted or paroled, according to U.S. Citizenship and Immigration Services.
Several public interest groups were concerned about the lack of a definition for “lawful presence” after the board proposed the rules in August. In response, the board stated that institutions should consult their own legal counsel to “determine the status(es) that may be considered lawfully present.”
“The lawfully present standard is required by federal law,” a board spokesperson wrote in a statement. “Our discretion in the matter is limited.”
The board does not have authority to determine what lawful presence is, but it could clarify how it interprets current provisions of immigration law, said Danny Woodward, an attorney with the Texas Civil Rights Project.
“Schools are going to probably … be treating students differently because they’re using different definitions of lawful presence,” Woodward said.
The adopted rules now allow schools to verify evidence of lawful presence using Systematic Alien Verification for Entitlements, a federal program administered by USCIS. The system helps government agencies confirm the immigration status of people applying for public benefits.
In Texas, eight state agencies are authorized to use SAVE, according to USCIS. However, no Texas university currently uses the system to independently verify lawful presence. Typically, schools do not need independent access to SAVE and instead use it in conjunction with another government agency, like the Department of Education, when administering federal student aid.
“USCIS welcomes the opportunity to work with universities in Texas or other states to ensure that only eligible aliens are receiving taxpayer funded benefits such as in-state tuition,” a USCIS spokesperson wrote in an email.
UT is considering the feasibility of using SAVE to confirm lawful presence.
To use SAVE, an agency must enter a formal agreement with USCIS, according to a sample contract. However, Garibay said she is concerned that sharing student information with the agency could lead to violations of the Family Educational Rights and Privacy Act, which protects students’ identifiable information, such as citizenship status or social security number.
“From our perspective, colleges and universities need to continue to protect students’ information,” Garibay said. “Our universities and colleges should not be the arm of USCIS.”