You wanted to know what homeland security-related reporting requirements impact states with laws granting in-state tuition benefits to undocumented immigrants.

SUMMARY

There appears to be no affirmative duty for college and university officials to report undocumented aliens attending schools to immigration authorities. While there is some question as to whether privacy laws allow schools to share student information with immigration authorities on a voluntary basis, two New York institutions that provide in-state tuition to undocumented aliens confirm that it is not their policy to report undocumented students. (Only a few states have laws providing in-state tuition to undocumented aliens. )

While schools are not required to proactively report the enrollment of undocumented aliens, documents submitted for federal student aid are supposed to be verified with immigration authorities. Additionally, they are required to comply with court orders and subpoenas regarding all of their students.

The majority of homeland security reporting requirements pertain to non-immigrant student visa holders. Portions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the PATRIOT Act of 2001, and The Enhanced Border Security and Visa Entry Reform Act of 2002, combine to create the current system by which schools are required to track foreign student and exchange visitors enrolled in their institutions. Schools are required to keep updated information on these students and report them to the Department of Homeland Security if certain events occur. These events may subject foreign students to deportation or removal under immigration law.

REPORTING UNDOCUMENTED ALIENS

No federal law prohibits institutions of higher education from admitting an applicant known to be an undocumented alien. Unlike employment law, there is no statute that requires proof of citizenship or immigration status in order to apply to a college or university. This issue is discussed extensively in the article “They Can’t Go Home Again: Undocumented Aliens and Access to U. S. Higher Education,” written by Stephen Yale-Loehr, an attorney and professor of immigration law and Ellen Badger, a higher education school official (5 Bender’s Immigration Bulletin 413, May 15, 2000). According to the Buffalo regional office of the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement, the only reporting required of colleges and universities relates to non-immigrant student visa holders. Therefore states like New York, that provide in-state tuition benefits to undocumented aliens would not be required to report them to immigration authorities.

Privacy Issues

Although they are not required to do so, the question of whether school officials are allowed to report undocumented students is an issue of some contention. The Family Educational Rights and Privacy Act (FERPA) of 1974, generally prohibits universities from releasing any personally identifiable information from student educational records without the student’s prior consent (20 U. S. C. §1232g et. seq. ) Exceptions to the prohibition include the provision of directory information, compliance with a judicial order or subpoena, and health and safety emergency disclosures. If a court order or subpoena is received, school officials must make an effort to notify the student before compliance so that he may take corrective action. Although laws passed in the wake of September 11, 2001 expanded the exceptions to FERPA, as discussed below, no exception refers explicitly to undocumented aliens.

Despite FERPA’s prohibition against disclosure, Virginia’s attorney general’s office issued a policy statement in 2002, encouraging all public employees in higher education to report suspected undocumented alien students, relying on §642 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (P. L. 104-208, 1996). This section prohibits any government entity or official from banning any other entity or official from exchanging information with immigration authorities. The attorney general’s policy guidelines did not interpret the statute as requiring the reporting of undocumented aliens enrolled in Virginia public higher education institutions, but found that the statute made it obvious that Congress intended for public employees to be free to disclose information about alien status to the immigration authorities. Virginia policy guidelines failed to mention FERPA.

Materials published on this issue, such as a 2003 article published by the National Association of College and University Attorneys, tend to address only non-immigrant student visa holders. A cursory review of these materials reveals that many school officials in higher and lower education believe that they are bound by FERPA with regard to all of their students.

According to a representative from the City University of New York (CUNY), which advocated for New York’s current law regarding in-state tuition for undocumented aliens, it is not their policy to report undocumented students. Additionally, representatives from CUNY and the State University of New York (SUNY) point out that such reporting seems unnecessary given that the New York in-state tuition law requires students to sign an affidavit that they are currently seeking or will as soon as possible seek lawful permanent resident status. All of the other states with laws granting in-state tuition to undocumented aliens (California, Illinois, Oklahoma, Texas, Utah, and Washington) have a similar provision.

Other Federal Immigration Laws

While federal law does not require students to provide proof of citizenship or immigration status to gain admission to a college or university, students must submit such documents in order to qualify for federal financial aid. IIRIRA’s §507 amended the Higher Education Act to require states and higher education institutions to transmit verification of an individual’s citizenship or immigration status to immigration authorities as a condition of participation in federal financial aid programs. In administering these programs, the U. S. Department of Education checks the validity of the Social Security numbers or verifies with immigration authorities that non-citizens are in a category that is eligible to receive federal aid. (Undocumented aliens and non-immigrant student visa holders are ineligible to receive federal financial aid. )

While there is no affirmative duty to report an undocumented alien, §507 of the U. S. A. PATRIOT Act of 2001 (P. L. 107-105), amended FERPA to permit the U. S. attorney general to obtain a court order granting access to education records that are relevant to an authorized investigation or prosecution of an act of terrorism. The order can be obtained and the records disclosed without notifying the student and parent involved.

FEDERAL LAWS REQUIRING REPORTS ON NON-IMMIGRANT STUDENTS

Although immigration law already required schools to track non-immigrant students (i. e. F, J, or M visa holders), additional legislation, such as the PATRIOT Act and the Enhanced Border Security and Visa Entry Reform Act of 2002 (P. L. 107-173) were passed to enhance these requirements in the wake of the September 11, 2001 terrorist attacks.

The Student and Exchange Visitor Information System (SEVIS) is an automated database used by the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement to collect information about foreign students and exchange visitors while they are in the United States.

SEVIS satisfies §641 of the IIRIRA, which requires the Bureau of Immigration and Customs Enforcement to collect current information on non-immigrant students and exchange visitors. IIRIRA also specifically exempts these students from the protection of FERPA. The PATRIOT act amended Section 641 to require full implementation of SEVIS prior to January 1, 2003. The Enhanced Border Security and Visa Entry Reform Act of 2002 (P. L. 107-173, 2002) adds to and clarifies the requirement to collect information, as well as requires an educational institution to report the failure of an alien to enroll.

Participation in SEVIS is mandatory for all schools and programs that issue student visas. At the beginning of each term, schools are required to report the address and enrollment status of all student visa holders. Additionally, SEVIS establishes “reportable events,” which may make a student deportable pursuant to U. S. immigration law. These events include a failure to maintain status and disciplinary action taken as a result of a student being convicted of a crime.

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