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By
JOSH BERNSTEIN
Director of Federal Policy
We regularly
receive questions from college administrators and others who have asked
whether federal law requires them to inquire about the immigration
status of their students or to report undocumented immigrant students to
the U.S. Department of Homeland Security (DHS). DHS now has confirmed
in writing that there is no such federal requirement.
One source of
confusion is the rules that apply to students who come to the U.S. using
temporary student or exchange visas. DHS uses a database called the
Student Exchange and Visitor (SEVIS) Program to keep track of these
students. The schools they attend are required to participate in SEVIS
and to record in it whether students are complying with the academic
visa requirements -- such as continued school enrollment and maintenance
of satisfactory grade point averages. Some administrators do not
understand that the SEVIS requirements apply only to these students and
not to students with any other immigration status
A few schools
have also expressed concern that their failure to report an undocumented
student to DHS could subject them to a charge of “harboring.”
We are happy to
report that DHS now
has
clarified in
unambiguous terms that colleges and universities are not required to ask
about the immigration status of their students, and they also are not
required to report undocumented students to the government. In the
context of a battle in North Carolina over whether that state’s colleges
would become the first in the country to bar undocumented students from
enrolling in its public colleges and universities, DHS has released a
very helpful letter clarifying its interpretation of the relevant
federal law. According to the DHS letter:
The Department of
Homeland Security (DHS) does not require any school to determine a
student’s status . . . . DHS also does not require any school to
request immigration status information prior to enrolling students or to
report to the government if they know a student is out of status, except
in the case of those who came on student visas or for exchange purposes
and are registered with the Student Exchange and Visitor Program.
Here is a copy of the letter, which was originally posted online by
The News & Observer, a North Carolina newspaper.
UPDATE: On July 9, 2008, DHS sent another letter reiterating the
same point, this time to the North Carolina attorney general’s office.
The new letter clarifies that admission to college is not a “public
benefit” that is regulated by federal immigration or public benefits
law, and that
the individual states must decide for themselves whether or not to admit
illegal aliens into their public post-secondary institutions.
States may bar or admit illegal aliens from enrolling in public
post-secondary institutions either as a matter of policy or through
legislation.
The letter goes on to note that in the absence of state rules, the
decision devolves to the colleges or universities themselves, but that
if a state or school does deny admission to undocumented immigrants, it
“must use federal immigration status standards to identify which
applicants are illegal aliens.”
Here is a copy
of the July 9
letter. |
