Virginia Can Keep In-State Tuition for Illegal Immigrants, Judge Rules

Students at the University of Virginia campus in Charlottesville, Va. on Oct. 12, 2022. Daxia Rojas/AFP via Getty Images

A federal judge on Oct. 5 sided with Virginia against the Trump administration over a state law that lets some illegal immigrants pay in-state tuition at public colleges and universities.

Senior U.S. District Judge Robert Payne of the Eastern District of Virginia denied the Justice Department’s motion for summary judgment, granted Virginia’s motion, and dismissed the case with prejudice.

The Justice Department argued that a 1996 federal law preempts two of Virginia’s routes to in-state tuition. That law bars states from giving illegal immigrants in-state tuition “on the basis of residence” unless U.S. citizens can get the same benefit regardless of where they live.

Payne rejected both arguments. He found that Virginia’s domicile-based route doesn’t apply to illegal immigrants at all, because state higher education guidelines make them ineligible for it.

The second route was created by a 2020 state law. It is open to students who attended a Virginia high school for at least two years, graduated or passed an equivalency exam, and whose parent or guardian filed Virginia income tax returns for at least two years. Payne found that this route isn’t based on residence, because some nonresidents qualify and some residents don’t.

The Tuition Equity Pathway “does not, directly or indirectly, provide in-state tuition ‘based on residence,’” Payne wrote.

The Justice Department had argued that the requirements amount to a stand-in for residency. “It would be difficult to imagine a more perfect proxy for residence,” the department wrote in a court filing quoted in the ruling.

Payne also ruled in the alternative that the law falls under the federal statute’s exception, because U.S. citizens who don’t live in Virginia can qualify for in-state tuition through other routes. He wrote that he gave a second basis for the decision because of the “virtual certainty of appeal.”

According to the ruling, 1,206 students not domiciled in Virginia used the 2020 pathway to get in-state tuition in the 2025–2026 school year. Average in-state undergraduate tuition that year was $9,987, compared with $28,591 for out-of-state students.

The ruling is a win for Virginia Attorney General Jay Jones, a Democrat who took office in January. Jones’s office said his Republican predecessor, Jason Miyares, tried to invalidate the law by entering a consent decree with the federal government “in the final moments” of his term. Jones had made defending the law a Day One priority.

“Today’s ruling is a win for Virginia’s students and for our Commonwealth’s future,” Jones said in a statement. He said students who grow up in Virginia and whose families pay taxes there deserve affordable in-state tuition, and that the ruling shows Virginia, “not [President] Donald Trump,” should decide the question. His office said it is ready to fight an appeal.

The Justice Department has sued every state with a law or regulation granting in-state tuition to illegal immigrants, according to Associate Attorney General Stanley Woodward Jr.

Lawsuits against Texas, Kentucky, Oklahoma, Nebraska, and Illinois ended with those states’ laws blocked, the department said. However, a federal judge in Minnesota dismissed the department’s suit against that state in March.

The Justice Department did not respond to an Epoch Times request for comment on the ruling before publication.

Jack Phillips and Jacki Thrapp contributed to this report.