Resident Tuition Not Available for Most Nonimmigrants
Posted Jun 08, 2001

The issue discussed in this article is interesting and common to many students on nonimmigrant (temporary visa) status, since many students from around the world who apply to U.S. universities for higher education would like to qualify for resident status in order to enjoy the benefit of lower tuition fees. We describe below a court case in which the court held that a person on a pure nonimmigrant visa status such as the TD or B-2, etc. cannot enjoy the benefit of in-state resident tuition fees.

As many MurthyBulletin readers are aware, persons in dependent categories such as H-4, L-2, or TD (dependent of a TN NAFTA professional) are allowed to attend school, as well as holders of student visa (for example, F-1 or M-1). This case was filed in California, where a TD visa holder sued a state university for not classifying her as a resident for tuition purposes, while other students on temporary visas were charged the resident tuition amount.

The court decided in favor of the university, and the plaintiff appealed. The Ninth Circuit Court of Appeals found that a person's eligibility to qualify for the resident tuition amount depended upon whether the nonimmigrant status was in a category that required nonimmigrant intent, i.e. the intent not to abandon a foreign residence. This nonimmigrant intent requirement is a feature of most temporary visa statuses, including TN, TD, B-1, B-2, F-1, F-2, J-1, J-2 etc. In contrast, holders of H1B, H-4, L-1 and L-2 visas are allowed to possess dual intent, meaning that it is legal for them to also be planning to stay permanently, in addition to being here on the temporary status. Even though a person may be in the U.S. on a temporary visa, it is possible in some circumstances such as the H-4 or L-2 for the person to be considered a resident for the purpose of paying student tuition.

Another example of a dual-intent category that the court mentioned is G-4, for employees of international organizations and their family members. In a prior case in the U.S. Supreme Court, G-4 visa holders were found to qualify for resident tuition. However, curiously, even though R visa holders (religious workers and their dependents) are subject to the nonimmigrant intent requirement, the university did charge R visa holders resident tuition, and the court did not have any problem with that policy.