Laws and Policy Impacting Undocumented Students

If you are an undocumented or immigrant student, an ever-changing set of laws and policies can have a direct impact on college and graduate school plans.

It’s important that you understand the recent history and ongoing changes to immigration laws in the U.S., especially as the impact how and where you can attend college.

According to federal law, undocumented students are allowed to attend colleges and universities in the United States. There are no laws at the national level prohibiting undocumented students from seeking admission, enrolling in, or graduating from American colleges.

However, federal law does prevent undocumented students from receiving federal student aid. Moreover, some states do have legal restrictions that may prevent undocumented students from attending colleges within.

Moreover, laws effecting the legal status of undocumented Americans are also in a state of constant change. Political and cultural factors can have a direct bearing on the laws impacting undocumented Americans, and as a consequence, can lead to dramatic changes in the educational outlook for undocumented students.

Below, we highlight the key legislation impacting undocumented and immigrant students, from the historically significant legal precedent set by Plyler vs. Doe in 1982, to Barrack Obama’s game-changing Deferred Action for Childhood Arrivals (DACA) policy initiative in 2012, to the wave of anti-immigrant executive actions under Donald Trump.

Understanding these laws—and how shifts in policy can impact your legal status and educational opportunities—is critical to your safety, security and success as a student in the U.S. Read on for a quick look at the history, a closer look at current laws, and links to outlets where you can get regularly updated information on actions, initiatives and advocacy groups related to U.S. immigration law.

Signed into law by President Gerald Ford in 1974, The Family Educational Rights and Privacy Act (FERPA) gives parents and families the right to access educational information regarding their children, the right to access information regarding public entities (including publicly funded educational institutions), and the right to privacy regarding certain personal details, particularly as concerns the sharing of this information with entities outside of a school or district.

Among these personal details, the Office of Civil Rights (OCR)—which is part of the Department of Education—notes that a public school or district should not ask about, nor is a student under any obligation to disclose information on, immigration status. The status of a student’s citizenship and documentation are not considered relevant to establishing district residency, nor is it Constitutional to use this information in determining access.

That said, there are certain exceptions to FERPA’s privacy protections that do have a direct bearing on undocumented students. According to the OCR, while FERPA generally prohibits public schools and districts from disclosing certain student information without prior consent, there may be circumstances in which federal immigration laws require districts to provide specific information about a student to another federal, state, or local government entity.

According to the OCR, this may occur “where the issuance of a non-immigrant visa to a student—and the maintenance of that student’s non-immigrant status—is conditioned on the student’s attendance at a specific school. Note that in that case, a school district would have preexisting information about the student that he or she would have presented to the school in order to obtain the underlying visa, and so the school would not have any reason to initiate a request for information about immigration status.”

The language suggests that this condition largely applies to those who have traveled to the United States with the stated intent of seeking only temporary student residency. For undocumented students who don’t possess student visas, the implication of FERPA is that there is no need or reason to disclose your immigration status, and further, that a school is prohibited from inquiring on the matter such that you can’t be made the subject of discrimination, intimidation, or deportation as a consequence of your desire to access to education.

For more formation and guidance about FERPA, visit the Department’s Family Policy Compliance Office website or email your questions directly through FERPA.Customer@ED.Gov.

The case of Plyler vs. Doe was filed in 1975 and concerned a set of laws in Texas which required students to prove their citizenship status in order to attend public schools. Public schools in one Texas municipality also imposed tuition requirements on students without this documentation. Families impacted by the new statewide legislation filed a claim against the state of Texas asserting that the laws were discriminatory.

The case eventually worked its way up to the Supreme Court, which ultimately rendered a decision in 1982. In a 5–4 vote, the Court found that both the Texas law and the municipal law imposing tuition fees were unconstitutional and violated the Equal Protection Clause of the 14th Amendment.

Also of consequence was the phrasing of the majority opinion, which found that the state and municipal laws were “directed against children, and impose[d] its discriminatory burden on the basis of a legal characteristic over which children can have little control.”

The 1982 decision would serve as a crucial precedent for students in grades K-12, denoting that no public school may deny a child access or opportunity on the basis of immigration status. While this precedent would not yet address the question of post-secondary institutions like colleges and universities, it would create a strong policy case for ultimately promoting access to education at every level regardless of immigration status.

For more on this precedent and how it applies to you, check out The American Immigration Council (AIC).

The Illegal Immigration Reform and Immigrant Responsibility [PDF] (IIRIRA) Act was passed in 1996, creating a wide set of restrictions and enforcement rules around immigration and status. In many ways, this legislation would bring about some of the most dramatic changes to immigration law in modern U.S. history, creating new obstacles to obtaining legal status and achieving residency, as well as appropriating new funding for border security measures aimed against an influx of undocumented immigrants.

Among its most consequential terms, the IIRIRA Act denotes that immigrants unlawfully present in the U.S. for 180 days but less than 365 must remain outside of the U.S. for up to three years before seeking citizenship. If present unlawfully for more than 365 days, your waiting period goes up to ten years unless a waiver is acquired. The same legislative package created authority for the construction of fencing and other border protections along the U.S.-Mexico border.

However, of greatest consequence to undocumented students, the IIRIRA dictated that undocumented college students cannot be made eligible for in-state tuition rates at public colleges or universities. Some states (see State Dreamer Laws below) would pass tuition-equality laws allowing undocumented students to pay in-state tuition rates upon meeting a state’s basic eligibility requirements. Despite this workaround, the federal law gives many states broad license to deny the discounted in-state tuition rate to undocumented students.

For more on navigating the IIRIRA and how it impacts your higher education opportunities, visit The American Immigration Council (AIC).

THE DREAM Act is a bill originally introduced to Congress in 2001 with the intention of providing pathways to legal status and eventual citizenship for immigrants who arrived in the United States as minors.

Though the DREAM Act was never passed into law, it did provide the term Dreamer to describe young undocumented Americans—many of whom arrived here as children through no decision of their own. In offering a special classification to this group of undocumented Americans, the proposed DREAM act also created a framework for providing structured protection to deserving immigrants—those attending school, maintaining gainful employment, and otherwise remaining free from criminal convictions.

Though the Bill would gain traction at various points in its history, Congress has never reached a successful final draft. As a result, the DREAM Act remained largely instructive in the discussion over immigration policy without every achieving legislative finality.

The Deferred Action for Childhood Arrivals (DACA) policy opened up major pathways to normalization and visibility for younger immigrants and undocumented residents. This consequently helped to open pathways to higher education and employment.

DACA was an extension of the DREAM ACT and provided a temporary fix for the absence of real legislation. The executive decision, issued through the Department of Homeland security under President Obama, gave hundreds of thousands of young immigrants the chance to obtain legal status, and consequently, created opportunities that included access to education, work, and freedom from legal persecution.

Today, there are nearly 11 million undocumented immigrants living the U.S. Among those immigrants, roughly 800,000 are classified as Dreamers, those who had been protected under the Deferred Action for Childhood Arrivals (DACA) since its implementation in 2012.

DACA status translates into a wider array of educational options—including more public school options—and even some opportunities for state-based aid or scholarship assistance. All applicants who have been previously determined eligible must reapply for this status every two years.

If you have not received DACA status, you are still legally entitled to apply to a college or university. However, various bureaucratic and financial obstacles will likely limit your options relative to those with DACA status.

Still, be assured that you are not violating any laws, nor should you feel that you are at risk of deportation, for either applying to or attending a college or university.

The election of Donald Trump in 2016 caused major shifts in federal immigration policy and America’s legal treatment of undocumented immigrants. This has included widespread deportations, criminal prosecutions and enforcement raids, all matters of serious concern to undocumented students.

To the point, part of this shift in policy has been an effort to roll back the protections afforded under DACA. The result is a state of legal flux and uncertainty for undocumented students. In the absence of binding Dreamer legislation, the Trump administration has taken steps to unravel DACA, including the September 2017 announcement that the DACA program would be coming to an end, and that the U.S. government was no longer accepting new applications.

In January 2018, a court order blocked the administration’s DACA rollbacks. While no new applications are being accepted, those with Dreamer status remain protected for now. Another federal court order recently found in August of 2018 that the federal government must reinstate DACA and continue to accept both new and renewal applications.

The matter is still pending in the courts.

This uncertainty underscores a few things. First, if you are currently protected under DACA and plan to enroll in college, you are advised to do so while your status remains in place. The uncertainty and change in the state of our immigration laws means that the future of your status is difficult to predict. Enrolling in college now could grant you access to a Student Visa and a longer stay in the United States.

And given the state of change in America’s immigration laws today, your best defense is knowledge and information. Remain up to date on relevant court cases, legal developments and legislative actions as they relate to DACA, Dreamers, and the broader immigration landscape in the U.S.

Visit the American Immigration Lawyers Association (AILA) for ongoing updates on legislative changes, executive actions, and both judicial and advocacy-based efforts to protect Dreamers.

Look at this helpful fact sheet from the American Federation of Teachers [PDF] that provides a quick at the changes to your rights since the rescinding of DACA.

Visit the DREAM Education Justice Program at United We Dream for education-specific support relating to your Dreamer status and opportunities for educational advancement.

As an undocumented student, your state of residence will have a direct impact on your access to higher education opportunities.

Though the federal government has yet to pass a comprehensive DREAM Act, a number of states have passed their own laws protecting the status of undocumented students regardless of instability at the federal level. Moreover, your eligibility to attend a public university, receive state-based financial aid, or pay in-state rates will vary from state to state.

Some states have laws designed to help undocumented students access public universities, including eligibility for in-state tuition rates or state financial aid.

By contrast, some states have laws restricting educational opportunities, including denial of access to public universities and ineligibility for in-state tuition rates or financial aid.

According to the National Conference of State Legislatures, as of 2015, 16 U.S. states have created legislation allowing for undocumented students to pay in-state tuition rates:

In addition, decisions initiated through state Boards of Regents have created access to local tuition rates for undocumented students attending state university systems in:

The state of Virginia provides in-state tuition eligibility only to those undocumented students with Dreamer status under DACA.

Among those listed above, there are six states that currently provide both in-state tuition rates and access to state financial aid:

The following states have passed laws that explicitly prohibit undocumented students from receiving financial aid:

The following states have laws that prohibit undocumented students from attending public college or universities altogether:

DACA recipients are eligible to attend any public colleges or universities in any state. However, statewide policy orientation toward undocumented students can be a strong indicator of the broader legal and social experience facing immigrants in each state.

Seek support, advocacy, and representation in order to better understand your rights, to remain up to date on changing laws, and to protect yourself against discrimination. Check out these key advocacy groups and legal networks below for more:

The legal status of immigrants, and especially undocumented young people, is in a state of great uncertainty today. Immigration laws remain at the center of a heated and emotional political battle, one that makes it difficult for undocumented students to know exactly what lay ahead.

Bookmark this page and remain tuned in to our Undocumented Students Guide to College for updates on shifting policies, insight on how these changes impact you, and access to an ever-growing set of resources designed to help you navigate both immigration and education in the United States.