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No Federal Requirement about Students' Status

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No federal requirement that school administrators inquire about students’ immigration status or report those who are undocumented, DHS confirms

May 13, 2008 (Updated August 6, 2008)
Josh Bernstein,
Former 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.” 

View a copy of the July 9 letter (PDF).