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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 ona 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 aremeeting all other requirements forTexas 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 inthis country under avisa permitting permanent residence orwho has filed with the proper federal immigration authorities a declaration of intention tobecome a citizen has the same privilege ofqualifying forresident status for fee purposes under thisAct as has a citizen of theUnited States. A resident alien residing ina junior college district located immediately adjacent to Texas boundary lines shall be charged the resident tuition by that junior college.



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See also Attorney General Opinion JR-241 (1984) (despite section 54.057, aliens permitted **by** Congress to adopt U.S. asdomicile must be accorded same privileges as permanent residents to qualify for resident tuition). ?

Under federal immigration law, alien spouses and children ofU.S. citizens arenot subject to the numerical restrictions applicable to other categories of immigrants. 8U.S.C. 51151(b) (1982). "Because of this special status accorded such alien relatives, aliens who either cannot otherwise qualify for immigration to theUnited States or who, though qualified, arenotwilling towait until an immigrant visa becomes available, frequently find it expedient to engage ina fraudulent marriage inorder to side-step the immigration law." H.R. Rep. No. 906, 99th Cong.,2d Sess. 9 (1986) printed in 1986 U.S. Code Cong.8Admin. News 5978; see also 10Harv. Women's L.J. 319, 320. The Immigration **Marriage** Fraud Amendments of 1986,which are codified at 8U.S.C. S1186a, were enacted order to discourage aliens i:audulent marriages from entering into for the purpose of acquiring permanent resident status intheUnited 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 themarriage has ended for areason other than death, the permanent resident status of the alien spouse will be terminated. 8U.S.C. §1186a(b). In order tohave the condition removed, themarried 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" forpurposes of section 54.057 of the Texas Education Code.

Inallowing aliens who live in the United States "under avisa 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 forpermanent residence"): see also 8

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

"permanent even though it may eventually be dissolved). Your question iswhether the newly created category under federal law of conditional permanent residents ispart of the category of aliens with a visa permitting permanent residence forpurposes 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 onhow the status ofpermanent resident subject to the condition set out inthe 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 inorder 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 inthe federal law as having "permanent resident status" or **as** being "lawfully admitted forpermanent 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 acondition attached. Subsection (a)(l)of section 1186aprovides:

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 (asdefined in subsection ,(g)(2)) shall be considered, at the time of obtainina the status of analien lawfullv admitted for uennanent residence. to have * ob ' d **subiect to**  h orovisions of this section. (Emphasis aid'ed.)
The 

### consequenceofadetermination that an alien spouse's marriage was fraudulent or that it has ended ' "termination ofpermanent resident status." m 8U.S.::

a H.R. Rep. No. 906, 99th Cong., 2d Sess. s1186a(c)(z&rinted b 1986U S Code Cong. 9 (1986), . . &Admin. News 5978, 5981 (notingthat billwould postpone privilege of permanent resident status). Thus, as suggested inabrief submitted inregard toyour request, the condition appears tobe a condition subsequent that allows theUnited 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



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permanent resident. sp;n also 8U.S.C. 51101(a)(31) (relationship canbe @'permanent" forpurposes of federal immigration law even though it may eventually be dissolved).
~160, forpurposes ofnaturalization, an alien who is a lawful permanent resident on aconditional basis is considered tobe "analien lawfully admitted to the United States for permanent residence." **8** U.S.C. !j1186a(e). Thus, although the 1986 legislation was intended to make iteasier 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 forpurposes of section 54.057. Aliens subject to the two-year condition are therefore eliaible tobe classified as residents forpurposes of tuition atTexas colleges and universities.



### SUMMARY

An alien granted permanent resident status subject to the condition set out in the Immigration **Marriage** FraudAmendments of 1986 isapermanent resident forpurposes of section 54.057 of the Texas Education Code and istherefore eligible tobe classified as a resident for purposes of tuition at Texas colleges and universities.

JIM MATTOX Attorney General of Texas

NARY KKLLKR FirstAssistant Attorney General

LouMCCRBARY Executive Assistant Attorney General

JUDGE ZOLLIE STKAKLKY Special Assistant Attorney General

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RICK GILPIN Chairman, Opinion Committee Prepared by Sarah Woelk Assistant Attorney General



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