Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
0~ TEXAS
,/- Ja~mary27,1988
JlM MA-
*-- -EmAL
Mr. Kenneth Ii. Ashworth Opinion No. a-848
Commissioner
Coordinating Board Re: Eligibility of
Texas College and University aliens holding E-l visas,
system and those under a NATO
P. 0. Sax 12788 Status of Forces Agree-
Austin, Texas 78711 ment to pay resident tui-
tion at state institu-
tions of higher educa-
tion; clarification of
Attorney General Opinion
JM-241 (1984) (RQ-1274)
Uear Mr. Ashworth:
You ask for a clarification of Attorney General
Opinion JW-241 (1984) in the light of certain developments
in the law subsequent to the date that opinion was issued.
In Attorney General Opinion JW-241, we considered
whether federal law required Texas to permit certain
categories of aliens present in the United States to adopt
this state as their domicile for the purposes of section
54.057 of the Texas Education Code. That law provides, in
part, that
[a]n alien who is living in this country
under a visa permitting permanent residence
or who has filed with the proper federal
immigration authorities a declaration of
intention to become a citizen has the same
privilege of qualifying for resident status
for fee purposes under this Act as has a
citizen of the United States. . . .
Educ. Code 554.057.
We determined that the Supremacy Clause of the United
States Constitution required Texas to allow aliens who are
permitted by the Ccngress to adopt the United States as
their domicile while they are in this country to have the
or. Kenneth Ii. Ashworth - Page 2 (JM-848)
same privileges as citizens and permanent residents of the
Unites States despite the limitations in section 54.057
which restrict its application either to persons with the
status of permanent resident or to those awaiting
naturalization. See aeneraJJy w v. MorenQ, 458 U.S. 1
(1982).
This means, of course, that certain aliens residing
in Texas may qualify as residents for purposes of tuition
at state universities. Such aliens are required to meet
the standards of proof for establishing resident status
required of all other claimants under the Education Code.
Attorney General Opinion a-241 determined that,
among others, holders of visas in the E-l category
(certain employees of foreign commercial firms working in
the United States) and persons stationed in this country
by the armed forces of signatories to the Agreement
between the Parties to the North Atlantic Treaty regarding
the Status of their Forces, 4 U.S.T. 1792, T.I.A.S. 2846
(the Status of Forces Agreement), are entitled to require
Texas to recognize this state as their domicile for the
purposes of section 54.057 of the Education Code. Based on
the rationale in Ipgll v. Ma, m, the opinion
stated:
The Immigration and Nationality Act
establishes various categories of
nonimmigrant aliens. Congress expressly
conditioned admission of aliens in some
nonimmigrant categories on an intent not to
abandon a foreign residence, a fact which
precludes the establishment of a domicile in
the United States for those aliens while
allowing the establishment of a domicile for
certain other nonimmigrant categories.
Attorney General Opinion m-241 (1984).
Subsequent to the issuance of our opinion, the
General Counsel of the Immigration and Naturalization
Service, in a letter to the Texas College and University
System, stated that it was the position of his office that
aliens holding visas in the E-l category were not
permitted by Congress to establish a domicile in the --.
United States:
[Plursuant to INS regulations, traders and
investors . . . are admitted for a period
not to exceed one, year. -8 C.F.R. 5
p. 4106
,
Mr. Kenneth Ii. Ashworth - Page 3 (JM-S~&)
r-
214.2 (e). In fact, the legislative history
of the Immigration and Nationality Act of
1952 mentions the temporary nature of the
. . . category. . . . It seems therefore,
that Congress has not permitted E aliens to
adopt the United States as their domicile
while they are here.
Letter, Maurice Inman, General Counsel, United States
Immigration and Naturalization Service, to Mack Adams,
Assistant Commissioner for Student Services, Texas College
and University System, October 18, 1985.
We defer to the expert interpretation of the
Immigration and Nationality Act developed by the chief
legal officer of the agency charged with implementing the
law. See e.ac, J&.ited States v. 525 Ce 342 F.2d 759
(1965). Accordingly, JM-241 is modified i;sofar as it
states that the holders of visas in the E-l category I&&
be permitted to adopt Texas as their domicile for the
purposes of applying section 54.057 of the Education Code.
Additionally, with regard to the persons associated
with the armed forces of signatories to the Status of
Forces Agreement, S``QZU, the General Counsel of the
Immigration Service has issued an opinion concerning the
ability of such alien military personnel and their
dependents to acquire a domicile here. In pertinent part
the opinion says:
You have requested our opinion as to
whether Congress allows [persons subject to
the Status of Forces Agreement] to enter the
United States as nonimmigrant aliens on
terms permitting the establishment of
domicile. This office has reviewed the per-
tinent immigration statutes as well as the
NATO Status of Forces Agreement and is
unable to conclude that any of these laws or
agreements clearly conveys the right to
establish domicile in the United States
under federal immigration law.
. . . .
Personnel entering the United States
under the NATO Status of Farces Agreement
are accorded a nonimmigrant classification
under that Agreement, and not under the
Immigration and Nationality Act. Article
p. 4107
I
Mr. Kenneth H. Ashworth - Page 4 (JM-848)
?
III states that NATO personnel 'shall not be
considered as acquiring any right to
permanent residence or domicile in the ?
territories of the receiving State.' NATO
Status of Forces Agreement, T.I.A.S. 2846
(1951).
Letter, Raurice Inman, General Counsel, United States
Immigration and Naturalization Service, to R. G.
Grosskraumbach, Legal Affairs Section, Federal Republic of
Germany, Armed Forces Administrative Agency, August 20,
1985.
Although the Immigration Service document setting
forth this view is labeled as only representing the view
of the General Counsel of the Service, we believe that it
should be accorded great weight. United States v. 525
Comaanvf NuRra- Therefore, to the extent that it permits
aliens present in Texas to acquire domicile for the
purpose of section 54.057 of the Education Code solelv
because of their status under the Status of Forces
Agreement, Attorney General Opinion JR-241 is hereby
modified.
Under the Supremacy Clause of the United
States Constitution, aliens who are
permitted by Congress to adopt the United
States as their domicile while they are in
this country must be allowed the same
privilege as citizens and permanent
residents of the United States to qualify
for Texas residency for the purposes of
tuition at state universities, despite the
limitation in section 54.057 of the Texas
Education Code. Holders of visas in the
E-l category, and aliens covered by the
Agreement between the Parties to the North
Atlantic Treaty regarding the Status of
their Forces, 4 U.S.T. 1792, T.I.A.S. 2046,
are not permitted by Congress to establish
domicile in the United States and therefore
need not be permitted to establish residency
status for the purposes of section 57.057 of ?.
the Texas Education Code. Attorney General
Opinion JR-241, to the extent that it is
inconsistent with this opinion, is modified.
p. 4108
Mr. Kenneth H. Ashworth - Page 5 (JIG848)
LJ IlLJk
Very truly yo ,
P
A
JIl4 MATTOX
Attorney General of Texas
XARYKBLLBR
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 4109