Deferred Action for Childhood Arrivals (DACA)
Questions and Answers on resident tuition for participants in the Deferred Action for Childhood Arrivals (DACA) program.
In response to questions presented by the community to members of the district governing board and admissions staff, Maricopa Community Colleges analyzed the effect of the U.S. government's new immigration program, Deferred Action for Childhood Arrivals (DACA), on the participants' eligibility to be considered for resident tuition. The analysis provided answers to some questions, as set forth below.
I understand that Maricopa Community Colleges may grant resident tuition to participants in the U.S. government's new immigration program, Deferred Action for Childhood Arrivals (DACA). Governor Brewer says these students are barred from eligibility because they lack lawful immigration status. What documentation can DACA participants get that makes them eligible to be considered for resident tuition?
Participants in DACA are eligible to receive employment authorization documents from the U.S. Citizenship and Immigration Services (USCIS). Section 1-502 of Arizona Revised Statutes specifies that people who can present this document to us satisfy the requirements to be considered for resident tuition.
Doesn't Proposition 300 (2006) say, specifically, that non-citizens who lack "lawful immigration status" are not entitled to classification as an in-state student or a county resident? And doesn't the U.S. Government say DACA participants will not get such status?
Proposition 300 says the state intends to conform to a Federal law [8 U.S. Code section 1623(a)] that doesn't use the words, "lawful immigration status." Instead, it says, "...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." Many other sections of Proposition 300, together with its sequel, Section 1-502, Arizona Revised Statutes, also use the words "not lawfully present" as the test. To us, it appears from the entire context of the Arizona legislation that the words, "without lawful immigration status," were intended to mean nothing more than, "not lawfully present in the United States."
Why are the different words significant?
"Lawful immigration status" is not defined in Proposition 300. Some would argue that it means a valid nonimmigrant or immigrant status. But it is clear under Federal law that an immigrant can be "lawfully present in the United States" without holding a valid status. In fact, Homeland Security guidance expressly differentiates between status and presence and specifies that DACA participants do not accrue unlawful presence during the period of deferred action. The obvious converse is they are lawfully present (within the meaning of immigration law). There are many other examples of people without status who are lawfully present, some of whom are specifically eligible for benefits under Federal law. For example, if an individual's employment-based status expires, but he has submitted a timely petition to extend his status, he continues to be eligible for such benefits. Such people may not be able to provide the usual forms of acceptable documentation, such as an I-94 card or permanent resident card, but it is common for them to have employment authorization. We believe this is why the legislature specified that for the state of Arizona, an employment authorization document issued by USCIS is proof that they are "lawfully present." As a practical matter, this defines that term for the state.
Doesn't the state get to set its own eligibility standards for state programs notwithstanding Federal law?
To some extent, yes. However, the state's authority to do that is limited to specific categories. Also, there are exceptions that include some categories of undocumented immigrants, like undocumented veterans. The state is required to provide benefits to these individuals even though they are undocumented. The category of DACA participant did not exist when the above laws were passed. Understandably, it is not specifically included in the Federal authorization of the state to set its own standards. The state has set its own general eligibility standard on instate tuition; in section 1-502 it has said people who can present employment authorization documents are eligible to be considered.
Hasn't Governor Brewer ordered changes in state laws and rules?
We are aware of the governor's order. However, it does not alter the statutes. Her order mentions that some state laws should change in response to the DACA program. We believe section 1-502 is one of the laws she may have had in mind. Maricopa is following the law as we understand it. We will continue to follow the law if it changes.
Does everyone who is lawfully present automatically get resident tuition?
No. Proving lawful presence means that the individual is not subject to the restrictions the above laws place on people who are not lawfully present. The applicant must still meet the qualification requirement for resident tuition. They must prove through documentation that they have established a permanent domicile in Arizona for at least a year. Some people who are lawfully present cannot do so. For example, some visa holders are barred by the terms of their temporary status from becoming residents of any state. Because DACA participants do not hold valid visas, however, they are not subject to this restriction. Indeed, they become eligible for a host of state and federal benefits.