California colleges agree on how to interpret in-state tuition law for undocumented students

Cal Poldy SLO campus and students

California Polytechnic State University, San Luis Obispo

Credit: Ashley Bolter / EdSource

More than 20 years ago, California passed a law allowing some undocumented immigrant students to attend college with in-state tuition, if they meet certain requirements.

But immigrant rights advocates say many students who should have been eligible have been wrongfully denied in-state tuition because of confusion over requirements, misinformation and different interpretations of the law at different college campuses.

“We lose that incredible brain power and colleges are losing enrollment,” said Nancy Jodaitis, director of higher education for Immigrants Rising, a nonprofit organization that advocates for undocumented people to achieve educational and career goals.

Immigrants Rising brought together officials from all three public college systems — California Community Colleges, California State University and University of California — to discuss and agree on answers to frequently-asked questions about the law.

The result is a document called the Systemwide AB 540 FAQ, which all three systems have now signed. The document includes answers to 59 questions, such as:

  • What if a student graduated from a California high school (completing three years’ worth of high school credits), but did not attend three years at a California high school?
  • Does a student have to take classes full time for their attendance to count?
  • Does all their coursework have to be taken at the same school?

Spokespeople from UC, CSU and California Community Colleges all celebrated the document.

Paul Feist, vice chancellor of communications and marketing for the California Community Colleges Chancellor’s Office, said the document is particularly important because there are several different laws regarding the nonresident tuition exemption.

The first bill exempting some undocumented immigrants from out-of-state tuition, Assembly Bill 540, was signed into law in 2001. Since then, three other bills have been passed to expand the law, in 2014, 2017 and 2022.

“While the intent was to expand access to AB 540 financial assistance, they had the unintended effect of making it more difficult to navigate,” Feist said. “This FAQ is designed to provide clearer explanations and provide additional resources in advising students.”

Under current California law, students who are undocumented or have temporary protection from deportation such as Deferred Action for Childhood Arrivals (DACA), or who are U.S. citizens or permanent residents, are eligible for in-state tuition and state financial aid, if they attended at least three years of high school, adult school or community college in California and obtained a high school diploma or equivalent, an associate degree or fulfilled the minimum requirements to transfer to a UC or CSU. 

Access to state financial aid and in-state tuition can be a critical factor for undocumented students, who are barred from receiving federal financial aid. Without the law in place, some of them would be charged tuition rates for international students, often much higher than in-state tuition.

“This is huge,” said Maria Gutierrez, a college counselor at Chabot College in Hayward and a doctoral student at San Francisco State University. “It helps us be aligned and have something in writing.”  Before the FAQ document, Gutierrez says college staff in charge of approving exemptions from out-of-state tuition were sometimes afraid to make decisions without written proof of how to interpret the law.

Gutierrez herself has benefited from AB 540. She came to the U.S. when she was 5 years old on a visa, which later expired. She attended elementary, middle and most of high school in California. She also graduated from high school in California. But when she applied to attend community college in California, different campuses disagreed on whether she was eligible for in-state tuition because she had spent two years of high school in Utah. At the time, a second law had recently been passed to allow colleges to consider years of attendance in elementary and middle school for AB 540 eligibility.

“One college that I went to in So Cal, I was approved for AB 540. When I had to go back to the Bay Area, I was not approved for AB 540. So then I was confused that there was this inconsistency,” Gutierrez said.

A few years later, when she applied to transfer to a four-year college, both UC and CSU campuses told her she was not eligible for in-state tuition, even though by then, a law had passed that clarified that attendance at community college could be counted toward the requirements. She spent a semester paying out-of-state tuition at San Jose State University, before the university finally acknowledged she was legally eligible for in-state tuition. 

As a college counselor, Gutierrez continues to meet students who have been incorrectly told they are not eligible for in-state tuition.

“It’s crazy because in reality it hasn’t changed much,” she said. However, she said, the financial burden is harder now, because most students graduating from high school cannot apply for work permits under DACA, because the government has not accepted new applications since 2017. 

“I see my students now and I see the struggles they’re going through. If I didn’t have DACA, I honestly don’t think I would be where I am now,” Gutierrez said. “There’s no way that I would’ve been able to pay nonresident fees or wait for whoever it is that is determining that to learn what they need to do for me to be able to go to college.”

Advocates say they hope the document will help colleges give correct information and avoid students having to research on their own for information.

California also recently streamlined the process for undocumented students to apply for financial aid and exemption from in-state tuition on the same application when they fill out the California Dream Act application. In the past, students had to both fill out a California Dream Act application and an AB 540 affidavit form for each college. Now, the AB 540 form will be part of the same application.

Diana Aguilar-Cruz said that change is significant. Aguilar-Cruz is currently pursuing a master’s degree in public health at Cal State Fullerton. When she first began her undergraduate education at Cal Poly Pomona, she was charged nonresident tuition, which was almost double the in-state tuition. She had immigrated to the U.S. from Mexico City in 2015, when she was 14 years old, and lived with her grandmother in Baldwin Park while attending high school. 

She had completed a California Dream Act application, but no one told her she also had to complete a separate form. After researching it herself online, she found the form and completed it, at which point the university finally changed her tuition to in-state.

“If I didn’t find it in my Google search, would I be paying in-state tuition for my four years of college?” Aguilar-Cruz said. “I always think to myself, what would have happened if I was a more fearful student or a student who did not have a strong support system at home?”

This article was corrected to clarify how Maria Gutierrez immigrated to the U.S. and that Chabot College is in Hayward.

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