                          THE   ATTORNEY    GENERAL
                                   0~ TEXAS

,/-                                   Ja~mary27,1988
      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 Agree-
                Austin, Texas 78711               ment to pay resident tui-
                                                  tion at state institu-
                                                  tions of higher     educa-
                                                  tion; 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
,

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

r-

            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 per-
            tinent 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
                                                                   I




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.




                         p. 4108
    Mr. Kenneth H. Ashworth - Page 5 (JIG848)




                                         LJ IlLJk
                                         Very truly yo   ,

P
                                             A
                                         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




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