THE ATTORNEY GENERAL 

0~ TEXAS 

,/- Ja~mary 27, 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 AgreeAustin, Texas 78711 ment to pay resident tuition at state institutions of higher education; 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 
, 

rMr. Kenneth Ii. Ashworth - Page 3 (JM-S~&) 

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 pertinent 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 
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. 

I 

? 

? 

?. 

p. 4108 
P 

Mr. Kenneth H. Ashworth - Page 5 (JIG848) 

Very truly yo , LJ A IlLJk 

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