c 

, 

Jatmary 15, 1988 

Mr. Kenneth Ii. Ashworth, 

Commissioner 

Coordinating Board 

Texas College 8 

University System 

P. 0. Box 12788 

Austin, Texas 78711 

Opinion No.JT‘I-845 

Re: Whether aliens granted 

permanent resident status 

on a conditional basis may 

qualify for resident status 

for tuition purposes 

(RQ-1194) 

Dear Commissioner Ashworth: 

You ask the following question: 

Are aliens granted conditional permanent 

residence status in the United States 

eligible to be classified as residents of 

Texas for tuition determination purposes 

prior to the removal of the conditional 

basis of their status, provided the aliens 

are meeting all other requirements for Texas 

residency which are applicable to United 

States citizens? 

The Education Code 

determination of 

contains general rules governing 

residency for tuition purposes. Educ. 

Code 5554.052 through 54.064. Section 54.057 provides: 

An 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. A resident 

alien residing in a junior college district 

located immediately adjacent to Texas 

boundary lines shall be charged the resident 

tuition by that junior college. 

p. 4086 
Mr. Kenneth Ii. Ashworth - Page 2 (m-845) 

4 

I 

See also Attorney General Opinion JR-241 (1984) (despite 

section 54.057, aliens permitted by Congress to adopt U.S. 

as domicile must be accorded same privileges as permanent 

residents to qualify for resident tuition). ? 

Under federal immigration law, alien spouses and 

children of U.S. citizens are not subject to the numerical 

restrictions applicable to other categories of immigrants. 

8 U.S.C. 51151(b) (1982). "Because of this special status 

accorded such alien relatives, aliens who either cannot 

otherwise qualify for immigration to the United States or 

who, though qualified, are not willing to wait until an 

immigrant visa becomes available, frequently find it 

expedient to engage in a fraudulent marriage in order to 

side-step the immigration law." H.R. Rep. No. 906, 99th 

Cong . , 2d Sess. 9 (1986) printed in 1986 U.S. Code 

Cong . 8 Admin. News 5978; see also 10 Harv. Women's L.J. 

319, 320. The Immigration Marriage Fraud Amendments of 

1986, which are codified at 8 U.S.C. S1186a, were enacted 

order to discourage aliens 

i:audulent marriages 

from entering into 

for the purpose of acquiring 

permanent resident status in the United States. H.R. Rep. 

No. 906, 99th Cong., 2d Sess. 9 (1986), KBprinted in 1986 

U.S. Code Cong. & Admin. News 5978. 

Section 1186a(s)(l) provides that an alien spouse or 

? 

child shall be considered nat the time of obtaining the 

status of an alien lawfully admitted for permanent 

residence, to have obtained such residence on a 

conditional basis." If, "before the second anniversary of 

the alien's obtaining the status of lawful admission for 

permanent residence," it is determined that the marriage 

was fraudulent or that the marriage has ended for a reason 

other than death, the permanent resident status of the 

alien spouse will be terminated. 8 U.S.C. §1186a(b). In 

order to have the condition removed, the married couple 

must submit a petition within 90 days of the second 

anniversary of the alien's obtaining permanent residence 

status. 8 U.S.C. 51186a(c), (a). Your question is 

whether an alien with permanent resident status on a 

conditional basis as described in 8 U.S.C. 8 1186a is a 

"permanent resident" for purposes of section 54.057 of the 

Texas Education Code. 

In allowing aliens who live in the United States 

"under a visa permitting permanent residence" to qualify 

for resident tuition, the Texas legislature created a 

class whose members are determined by federal law. Educ. 

Code 554.057; w 8 U.S.C. 51101(a)(20) (defining 

"lawfully admitted for permanent residence"): see also 8 

p. 4087 
Mr. Kenneth Ii. Ashworth - Page 3 W-845 ) 

;I;.;, gllOl(a)(31! (defining npermanentn; relationship 

"permanent even though it may eventually be 

dissolved). Your question is whether the newly created 

category under federal law of conditional permanent 

residents is part of the category of aliens with a visa 

permitting permanent residence for purposes of section 

54.057 of the Texas Education Code. Secause the federal 

category created by the Immigration Marriage Fraud 

Amendments of 1986 did not exist at the time section 

54.057 was enacted, section 54.057 itself offers no 

guidance on how the status of permanent resident subject 

to the condition set out in the Immigration Marriage Fraud 

Amendments of 1986 fits into the scheme set out in section 

54.057. Therefore, we must turn to the language of the 

new federal statute in order to answer your question. 

Despite the condition attached to his status, an 

alien spouse or child subject to the provisions of section 

1186a is still described in the federal law as having 

"permanent resident status" or as being "lawfully admitted 

for permanent residence." Throughout section 1186a an 

alien spouse or child subject to the provisions of section 

1186a is referred to as having "permanent resident 

status," albeit with a condition attached. Subsection 

(a)(l) of section 1186a provides: 

Conditional basis for status. 

Notwithstanding any other provision of this 

Act, an alien spouse (as defined in 

subsection (g)(l)) and an alien son or 

daughter (as defined in subsection ,(g)(2)) 

shall be considered, at the time of 

obtainina the status of an alien lawfullv 

admitted for uennanent residence. to have 

* ob ' d 

subiect to h orovisions of this section. 

(Emphasis aid'ed.) 

The consequence of a determination that an alien spouse's 

marriage was fraudulent or that it has ended ' 

"termination of permanent resident status." m 8 U.S.:: 

a H.R. Rep. No. 906, 99th Cong., 2d Sess. 

9 s1186a(c)(z&rinted (1986), b 1986 U . S . Code Cong. & Admin. News 

5978, 5981 (noting that bill would postpone privilege of 

permanent resident status). Thus, as suggested in a brief 

submitted in regard to your request, the condition appears 

to be a condition subsequent that allows the United States 

to revoke the permanent resident status of certain alien 

spouses and children under specified circumstances rather 

than a condition precedent to obtaining the status of 

p. 4088 
Mr. Kenneth H. Ashworth - Page 4 (~~-845) 

permanent resident. sp;n also 8 U.S.C. 51101(a)(31) 

(relationship can be @'permanent" for purposes of federal 

immigration law even though it may eventually be 

dissolved). 

~160, for purposes of naturalization, an alien who is 

a lawful permanent resident on a conditional basis is 

considered to be "an alien lawfully admitted to the United 

States for permanent residence." 8 U.S.C. !j1186a(e). 

Thus, although the 1986 legislation was intended to make 

it easier to revoke the privileges accorded to aliens 

subject to the two-year condition, it appears that the 

condition was not intended to deny to aliens subject to 

the condition all privileges that accompany permanent 

resident status. 

Thus, we feel constrained to conclude that aliens 

subject to the two-year condition are permanent residents 

for purposes of section 54.057. Aliens subject to the 

two-year condition are therefore eliaible to be classified 

as residents for purposes of tuition at Texas colleges and 

universities. 

SUMMARY 

An alien granted permanent resident 

status subject to the condition set out in 

the Immigration Marriage Fraud Amendments of 

1986 is a permanent resident for purposes of 

section 54.057 of the Texas Education Code 

and is therefore eligible to be classified 

as a resident for purposes of tuition at 

Texas colleges and universities. 

JIM MATTOX 

Attorney General of Texas 

NARY KKLLKR 

First Assistant Attorney General 

Lou MCCRBARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STKAKLKY 

Special Assistant Attorney General 

p. 4089 
,- 

Mr. Kenneth Ii. Ashworth - Page 5 (J&845) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 4090