A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, August 14, 2012

New Jersey student eligible for financial aid despite parent not being a legal resident

Getting a college education is very important to immigrant families.  College education, however, has become prohibitively expensive in recent years for many families.  Financial aid has become increasingly important in pursuing a college education.  Most states charge out-of-state students higher tuition and fees than state residents.  To determine whether a student is eligible for in-state tuition, the State usually looks at the parents’ residence and whether or not they pay state income tax, as college student is usually considered a dependent of the parents. What if the parents are not legal residents of the State or even the United States?

A recent case decided by the Appellate Division of the New Jersey State Superior Court held that an otherwise eligible student who is a United States citizen and long-time New Jersey resident may receive the state’s financial aid even though her mother is not a legal immigrant.  In the case of A.Z. v. HESAA, the student, A.Z., is a U.S. born citizen and has been residing in New Jersey since 1997 where she attended public high school. Her father not being part of her life, she was raised by her mother.  She applied for the state’s Tuition Aid Grant (TAG) based on financial needs.  Upon consideration of her application, the Higher Education Student Assistance Authority (HESAA) determined that she was ineligible to receive a TAG because her parents were not legal New Jersey residents. With the help of the ACLU-NJ, A.Z. appealed the denial to the Appellate Division.  The Appellate Division agreed with A.Z. and overturned HESAA’ decision, ruling that HESAA misapplied the law and struck down its regulation.

HESAA stated two reasons for denying this NJ student’s financial aid application. First, HESAA argued a student must be domiciled in New Jersey to satisfy the statutory residence requirement for financial aid.  According to its regulation, a student’s domicile is the same as her parent.  Therefore, since A.Z.’s mother has no legal residence in New Jersey or in the United States, A.Z. herself is also without legal status for financial aid purposes.  Such a strict imputation of the parents’ residence or domicile upon the student was rejected by the Appellate Division.  There is generally a legal presumption that a minor’s domicile is the same as her parents because a minor usually depends on the parent emotionally and materialistically.  However, the HESAA’s regulation does not only impose a legal presumption but an irrefutable legal conclusion that a child’s domicile must be the same as that of her parents, which was rejected by the Appellate Division.

Secondly, HESAA also argued that financial aid benefits are actually for the parents of A.Z. because they reduce their financial burden.  Therefore, the actual beneficiary of the TAG is A.Z.’s mother.  Since the mother has no legal status and residence in New Jersey, the application must be rejected based on state and federal laws.  Again, such an argument was rejected by the Appellate Division.  The relevant New Jersey law clearly states that financial aid such as TAG is created for the benefits of needy students and it is also the students’ responsibility to repay any student loan.   Further, financial aid is akin to child support, both of which are designated for the benefits of the child, and only the child has legal rights to make a claim for them. There this second argument was also rejected.

Although this decision may still be subject to change in New Jersey, this case is particularly important as it may trigger other similar legal battles in the financial aid application process.  After all, the skyrocketing costs of attending college can be a strong motivation for parents and students to take financial aid issues to court. 

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