Universities May Classify Dependents Of TN Professionals As Non-Residents

Spouses and minor, unmarried children, who are accompanying or following to join TN professionals, may be admitted to the United States under the TD classification. Dependents of TN employees are not permitted to accept employment in the U.S. while in TD status. They are, however, permitted to attend school on a full-time basis.

Prospective students in TD status should be aware that many schools may consider them non-residents for tuition purposes and therefore subject them to higher tuition rates. In one case, a Canadian citizen in TD status applied for admission as a student at San Jose State University. The school advised her that she could not attend the school on the tuition-free basis afforded to California residents because her TD status precluded her from establishing permanent residence. Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001).

The TD holder brought a federal civil rights action against the school. The Ninth Circuit Court of Appeals held that because admission into the United States under TN/TD nonimmigrant status was expressly conditioned on intent not to establish permanent residence in the U.S., the TD holder could not qualify for residency status in California. Because of this immigrant intent restriction, the TD holder lacked the legal capacity to establish domicile in the United States and did not qualify for classification as a state resident under the California Education Code.

Based on this decision, individuals in non-immigrant visa categories that require maintenance of a foreign residence as a condition of admission into the U.S., such as TD or F-1 visa status, may be charged non-resident tuition fees. This case should not bar individuals in non-immigrant visa categories that permit both immigrant intent and school attendance, such as the H-1B visa category (when incidental to employment), from qualifying for resident tuition fees. See, e.g., Toll v. Moreno, 458 U.S. 1, 73 L. Ed. 2d 563, 102 S. Ct. 2977 (1982); and Elkins v. Moreno, 435 U.S. 647, 55 L. Ed. 2d 614, 98 S. Ct. 1338 (1978).