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,




                          Jatmary15, 1988




    Mr. Kenneth Ii. Ashworth,             Opinion No.JT‘I-845
       Commissioner
    Coordinating Board                    Re: Whether aliens granted
    Texas College 8                       permanent  resident   status
       University System                  on a conditional basis may
    P. 0. Box 12788                       qualify for resident status
    Austin, Texas    78711                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 contains general rules governing
    determination of 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.




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Mr. Kenneth Ii. Ashworth - Page 2   (m-845)
                                                                    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    from entering     into
i:audulent marriages     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.
s1186a(c)(z&rinted
9 (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




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



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




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