Final Text
CHAPTER 120
GUIDELINES FOR DETERMINING DOMICILE AND ELIGIBILITY FOR IN-STATE TUITION RATES (REPEALED)
Part I
Definitions
8VAC40-120-10. Definitions. (Repealed.)
The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:1
"Active-duty military" means full-time duty in
the active military service of the United States. Such term includes full-time
training duty, annual training duty, and attendance, while in the active
military service, at a school designated as a service school by law or by the
secretary of the military department concerned. Such term includes the Air
Force, Army, Coast Guard, Marines, Navy, and National Guard members operating
under Title 10 of the United States Code but does not include full-time
National Guard Duty under Title 32 of the United States Code.
"Date of alleged entitlement" means the first
official day of class within the semester or term of the program for the
institution in which the student is enrolled. For special classes, short
courses, intensive courses, or courses not otherwise following the normal
calendar schedule, the date of alleged entitlement refers to the starting date
of the nontraditional course in which the student is enrolled.
"Dependent student" means one who is listed as a
dependent on the federal or state income tax return of his parents or legal
guardian or who receives substantial financial support from his spouse, parents
or legal guardian. It shall be presumed that a student under the age of 24 on
the date of the alleged entitlement receives substantial financial support from
his parents or legal guardian, and therefore is dependent on his parents or
legal guardian, unless the student (i) is a veteran or an active duty member of
the U.S. armed forces; (ii) is a graduate or professional student; (iii) is
married; (iv) is a ward of the court or was a ward of the court until age 18;
(v) has no adoptive or legal guardian when both parents are deceased; (vi) has
legal dependents other than a spouse; or (vii) is able to present clear and
convincing evidence that he is financially self-sufficient.
"Domicile" means the present, fixed home of an
individual to which he returns following temporary absences and at which he
intends to stay indefinitely. No individual may have more than one domicile at
a time. Domicile, once established, shall not be affected by mere transient or
temporary physical presence in another jurisdiction.
"Domiciliary intent" means present intent to
remain indefinitely.
"Emancipated minor" means a student under the age
of 18 on the date of the alleged entitlement whose parents or guardians have
surrendered the right to his care, custody and earnings, and who no longer
claim him as a dependent for tax purposes.
"FTE" means a full-time equivalent student. FTE
is a statistic derived from the student-credit hour productivity of an
institution.
"Full-time employment" means employment resulting
in at least an annual earned income reported for tax purposes equivalent to 50
work weeks of 40 hours at the federal minimum wage (50 X 40 X current minimum
wage). The person may have earned this money in less than 50 weeks, but the time
period in which the money is earned (up to one year) is irrelevant. The
individual must also report these wages for income tax purposes.
"Independent student" means one whose parents
have surrendered the right to his care, custody and earnings, do not claim him
as a dependent on federal or state income tax returns, and have ceased to
provide him substantial financial support. (See also, "Dependent
student," above.)
"Legal guardian" means a legal status created by
court order which vests in a custodian the right to have physical custody of
the child, to determine and redetermine where and with whom he shall live, the
right and duty to protect, train and discipline him and to provide him with
food, shelter, education and ordinary medical care, all subject to any residual
parental rights and responsibilities.
"Parent" applies to the biological parents of the
student except in cases of adoption, where it applies to the adoptive parent or
parents.
"Presumption" means that a student is presumed,
or assumed, to have a certain status, unless the student can show the contrary
by clear and convincing evidence. The student should be given the chance to
rebut the presumed fact by clear and convincing evidence.
"Special arrangement contract" means a written
contract between a Virginia employer or the authorities controlling a federal
installation or agency located in Virginia and a public institution of higher
education for reduced tuition charges.
"Substantial financial support" means the amount
of support which equals or exceeds the amount necessary to qualify the
individual to be listed as a dependent on federal and state income tax returns.
"Unemancipated minor" means a student under the
age of 18 on the date of the alleged entitlement who is under the legal control
of and is financially supported by either of his parents, legal guardian, or
other person having legal custody.
"Virginia employer" means entities, including
corporations, partnerships, or sole proprietorships, organized under the laws
of Virginia, or having income from Virginia sources. Also included are public
or nonprofit organizations authorized to operate in Virginia.
1Nothing herein is intended, nor shall be
construed, to repeal or modify any provision of law.
Part II
In-State Tuition Rates for Domiciliary Residents of Virginia
Article 1
Domicile Requirement
8VAC40-120-20. Determining eligibility for in-state tuition.
(Repealed.)
A. The institution shall first determine from the
information furnished by the applicant whether the applicant is a dependent or
independent student, emancipated or unemancipated minor.
B. The institution shall then determine, on the basis of
the information furnished by the applicant, whether the student has clearly and
convincingly established Virginia domicile for the requisite one-year period.
If the date of the alleged entitlement is, for example, September 1, 2001, then
the student must have established Virginia domicile no later than September 1,
2000, and continued it for the entire year.
1. An independent student or emancipated minor must
establish by clear and convincing evidence that for a period of at least one
year immediately prior to the date of alleged entitlement, the student was
domiciled in Virginia and had abandoned any previous domicile.
2. A dependent student or unemancipated minor must establish
by clear and convincing evidence that for a period of least one year
immediately prior to the date of alleged entitlement, the parent or legal
guardian through whom the student claims eligibility was domiciled in Virginia
and had abandoned any previous domicile.
3. A dependent student is presumed to have the domicile of
the parent or legal guardian listing the student as an exemption for tax
purposes or providing substantial financial support. A dependent student 18 or
over may seek to show a domicile independent of such parent or legal guardian
regardless of financial dependency; however, the student is presumed to have
the same domicile as his parents or legal guardian unless he can show to the
contrary by clear and convincing evidence.
4. The one-year of domicile period applies to all
classifications of students except for: (i) active-duty military personnel
residing in the Commonwealth who voluntarily elect to establish Virginia as
their permanent residence for domiciliary purposes, and (ii) dependent spouses
or children claiming eligibility through an active-duty military member
residing in Virginia who voluntarily elects to establish Virginia as his
permanent residence for domiciliary purposes.
8VAC40-120-30. Domicile: residence requirement. (Repealed.)
A. Domicile is defined in the law as "the present
fixed home of an individual to which he returns following temporary absences and
at which he intends to stay indefinitely." No person may have more than
one domicile.
1. Domicile cannot be initially established in Virginia
unless one actually resides, in the sense of being physically present, in
Virginia with domiciliary intent.
2. Domiciliary intent means present intent to remain
indefinitely, that is, the individual has no plans or expectation to move from
Virginia. Residence in Virginia for a temporary purpose or stay, even if that
stay is lengthy, with present intent to return to a former state or country
upon completion of such purpose does not constitute domicile.
B. Once a person has established domicile in Virginia,
actual residence here is no longer necessarily required.
1. Temporary absence from the state does not negate a claim
of Virginia domicile unless the person does something incompatible with
domiciliary intent, such as, but not limited to, registering to vote in the new
state, indicating an intent to establish domicile in another state.
2. A person who has established Virginia domicile but
resides in another state may be required by laws of the host state to fulfill
certain obligations of the host state. Performing acts in the host state
required by law of all residents, irrespective of domicile, does not automatically
constitute an abandonment of Virginia domicile. However, such acts will need to
be examined to determine if they were voluntary.
3. The question is whether an individual's acts, especially
voluntary acts, show the establishment of a new domicile in the host state and
abandonment of Virginia domicile.
C. The physical presence requirement means that a person
who has never resided in Virginia, or who was not residing here at the time he
formed the intent to make Virginia his home, cannot be domiciled here until
actually moving to Virginia and taking the appropriate steps to establish
domicile. Additionally, the physical presence cannot be temporary in nature,
such as a visit or vacation.
8VAC40-120-40. Domicile: intent requirement. (Repealed.)
A. Where a person resides is relatively easy to determine. It
can be difficult to ascertain whether a person has resided in Virginia with
domiciliary intent. A person may have more than one residence but only one
domicile.
1. Domiciliary intent is normally determined from the
affirmative declaration and objective conduct of the person. Intent is
necessarily a subjective element; however, a person demonstrates his intent
through objective conduct. When evidence is conflicting, the opposing facts
must be balanced against each other.
2. The burden is upon the applicant to demonstrate by clear
and convincing evidence that his domicile is Virginia and that he has abandoned
any prior domicile.
3. The law also requires that a person claiming eligibility
for in-state tuition through Virginia domicile (or the person through whom
eligibility is being claimed) shall have demonstrated Virginia domicile for at
least one year immediately prior to the date of the alleged entitlement.
4. Mere residence due to incarceration in Virginia does not
necessarily mean that Virginia domicile has been established. Domicile, by
definition, is based upon voluntary actions.
B. Prior determination of a student's domiciliary status by
one institution is not conclusive or binding when subsequently considered by
another institution; however, assuming no change of facts, the prior judgment
should be considered.
C. Each case presents a unique combination of factors, and
the institution must determine from among them those core factors which clearly
and convincingly demonstrate the person's domiciliary intent.
1. Having isolated the core factors in a given case, the
institution must look at the date on which the last of these essential acts was
performed. It is at that point that domiciliary intent is established, and the
clock starts running for purposes of the one-year domicile requirement.
2. In complex cases, it might be helpful to chart on a
timeline the steps taken to establish domicile. After establishing domicile, an
individual must continue to meet the factors demonstrating domiciliary intent
throughout the one-year period prior to the date of alleged entitlement.
D. It is important to reiterate the reference to clear and
convincing evidence. A student who claims Virginia residency must support that
claim by clear and convincing evidence. Clear and convincing evidence is not as
stringent a standard as proof beyond a reasonable doubt, as required in the
criminal context, but is a degree of proof higher than a mere preponderance of
the evidence. Clear and convincing evidence is that degree of proof that will
produce a firm conviction or a firm belief as to the facts sought to be
established. The evidence must justify the claim both clearly and convincingly.
E. Section 23-7.4 of the Code of Virginia includes a list
of objective conduct that must be considered, if applicable, in evaluating a
claim of domiciliary intent. Necessarily, each of the objective criteria will
not carry the same weight or importance in an individual case. No one factor is
necessarily determinative but should be considered as part of the totality of
evidence presented. The objective criteria that may be relevant include the
following:
1. Continuous residence for at least one year immediately
prior to the date of alleged entitlement. Continuous residence may be evidence
supporting that the person intends to make Virginia his home indefinitely. As
noted previously, once a person has affirmatively established Virginia
domicile, actual residence in Virginia is not required in order to retain it.
However, residence in another state or country is still relevant because it may
be that the person has established a new domicile in the foreign jurisdiction,
or never intended to remain indefinitely in Virginia.
2. State to which income taxes are filed or paid.
a. Failure to file a tax return in Virginia is evidence
that one is not a Virginia domicile. Domiciliaries, who have taxable income,
are required to file returns regardless of the fact that they may reside
elsewhere.
(1) The general rule is that Virginia domiciliaries
residing temporarily outside the Commonwealth must file Virginia resident
income tax returns if they wish to maintain their Virginia domicile.
(2) Persons claiming that they are exempt from this
requirement, such as those who reside overseas and are employed by certain
non-U.S. companies, have the burden of clearly identifying the exemption and
demonstrating their entitlement to it.
b. Considering payment or nonpayment of income tax as a
factor assumes that the individual had taxable income. Moreover, under Virginia
tax law, a Virginia domiciliary is not required to file a Virginia return if
the person's Virginia adjusted gross income was less than minimum levels. Thus,
failure to file a return by someone who had no income in Virginia or who was
not otherwise required to file a state income tax form, is not determinative of
domiciliary status.
c. A member of the armed forces who does not claim Virginia
as his tax situs for military income cannot qualify as a Virginia domiciliary.
d. The filing of an income tax return in Virginia or the
paying of income taxes to Virginia is supporting evidence, but not conclusive
evidence, that a person is domiciled in Virginia. For example, a student with a
part-time job may be required to pay income tax to Virginia on wages earned in
the state, even though he is a temporary resident or residing outside of
Virginia.
e. Paying income taxes to another state or country is also
not automatically determinative of domiciliary status; a Virginia domiciliary
may be required by another state to pay income taxes on income earned in that
state irrespective of ties to the state. However, such payment may be
considered, along with all of the other evidence, in evaluating a claim of
Virginia domicile.
3. Driver's license.
a. Possession of a Virginia driver's license may be
evidence of intent to establish domicile in Virginia.
b. Possession of a driver's license from another state may
be evidence of intent to retain domicile in that state.
4. Motor vehicle registration.
a. Registration of a motor vehicle in Virginia may be
evidence of intent to establish domicile in Virginia.
b. Registration of a motor vehicle in another state may be
evidence of intent to be domiciled in that state.
c. Virginia law permits, but does not require, registration
by a nonresident student. Thus, a student-owner who does register in Virginia,
when not required to by law, has shown some evidence of Virginia domicile.
However, vehicle registration alone is not determinative.
5. Voter registration.
a. Actual voting.
(1) Voting in person or by absentee ballot in another state
or country during the year immediately prior to the date of the alleged
entitlement is strong evidence that the individual has not established domicile
in Virginia.
(2) Voting in Virginia in local or state elections is
evidence of domicile, but it is not determinative.
(3) Failing to vote in state or local elections is also
evidence that the person is not a domiciliary; however, it is not determinative
in all cases since the individual may forget to vote, choose not to, or in the
case of certain aliens, may not be entitled to vote.
b. Actual registration.
(1) Registering to vote in Virginia within the past year is
evidence of domiciliary intent, but it is not determinative. The institution is
not bound by the voter registrar's determination; however, it should be
considered.
(2) The fact that a person is still registered in another
state, but has not voted there in the past year, does not conclusively mean
that the person is not domiciled in Virginia; however, it should be considered.
(3) Failure to register to vote by a person who, on
principle, has never registered to vote anywhere should not be taken as
conclusive evidence that the person lacks domiciliary intent.
6. Employment.
a. If a person has otherwise shown residence in the state
with domiciliary intent, unemployment does not preclude a finding that the
person is a Virginia domiciliary.
b. Fulfillment of state licensing requirements in order to
be certified to practice a profession in Virginia (e.g., attorney, clinical
psychologist, nursing), is evidence of domiciliary intent; however, it is not
determinative.
c. Summer employment.
(1) Employment in Virginia during the summer may be one
indicator of domiciliary intent, but not conclusive evidence.
(2) A student returning for extended periods each summer to
his parents' domicile outside Virginia may be evidence of retaining that
domicile.
d. Employment that is part of an educational program, such
as a cooperative education program, shall not confer domiciliary status.
7. Ownership of real property.
a. Ownership of real property (e.g., land, house, cottage,
etc.) in Virginia may be evidence of domiciliary intent.
b. Payment of real property taxes to Virginia in the
absence of other supportive evidence is insufficient to establish that a person
is domiciled in Virginia. Owners of real property in Virginia are required to
pay real estate taxes irrespective of their domicile.
c. A person who may have purchased real property in Virginia
while domiciled here, but who subsequently left to take up residence in another
state, cannot demonstrate continued domicile solely by presenting evidence of
continued ownership of Virginia property. Even though the person still has
taxable real property in Virginia, the individual's actions may show that
Virginia domicile has been abandoned.
8. Sources of financial support.
a. Acceptance of financial assistance from public agencies or
private institutions located in another state likely precludes establishing
Virginia domicile when such financial assistance is offered only to
domiciliaries of the other state.
b. Acceptance of such assistance would not prohibit a
student, at a later time, from showing a change of intent or that the student
did not know that he was representing domicile of another state. Such claims
are suspect and must be proven by clear and convincing evidence.
c. Institutions shall also consider financial support obtained
from parents or other relatives. Substantial financial support from a parent or
relative in another state could be evidence of continuing ties to that state.
9. Military records.
a. In order to establish domicile, a military member must
pay Virginia taxes on all military income.
b. A student should submit copies of military documents
such as the DD2058 "State of Legal Residence Certificate" that is
part of the student's official military records and the Leave and Earnings
Statement as evidence of Virginia domicile.
10. Employment in Virginia post-graduation.
a. Accepting a formal offer of permanent employment with a
Virginia employer following graduation from the institution is strong evidence
of domiciliary intent. Evidence of employment in Virginia following graduation
without other indications of domiciliary intent is not determinative.
b. The burden is on the student to demonstrate that such
employment exists, for example, through a written commitment between the
student and the prospective employer.
c. Students nearing graduation and seeking reclassification
provide strong evidence of domiciliary intent with proof of likely employment
in Virginia following graduation. Such students not providing for employment, or
actively soliciting employment, in Virginia following graduation is evidence
disfavoring reclassification.
11. Social and economic relationships.
a. The fact that a person has immediate family ties to
Virginia may be offered to support a claim of domiciliary intent.
b. Other social and economic ties to Virginia that may be
presented include membership in religious organizations, community
organizations, social clubs, bank accounts, and business ties.
8VAC40-120-50. Residence for educational purposes. (Repealed.)
A. Mere physical presence or residence primarily for educational
purposes will not confer domiciliary status. For example, a student who moves
to Virginia for the primary purposes of becoming a full-time student is not a
Virginia domiciliary, even if the student has been in Virginia for the required
one-year period.
B. A person shall not ordinarily be able to establish
domicile by performing acts which are auxiliary to fulfilling educational
objectives or which are required or routinely performed by temporary residents
of the Commonwealth.
C. The issue is whether the individual has moved to
Virginia with the primary purpose of becoming a full-time student or with the
primary purpose of establishing indefinitely his home in Virginia. In
questionable cases, the institution should closely scrutinize acts, aside from
those that are auxiliary to fulfilling the student's educational objective,
performed by the individual which indicate an intent to become a Virginian.
D. Students often attempt to reclassify as a Virginia
domiciliary after completing a few semesters at the institution. Institutions
should examine the number of credits taken by the student in past semesters in
determining if the student came to Virginia with the primary purpose of
attending school.
E. If the initial and continuing purpose of moving to
Virginia was for educational purposes for one spouse, this may be evidence that
neither spouse has domiciliary intent.
F. Employment as part of a cooperative education program
does not confer domiciliary status. Some institutions consider students participating
in cooperative education programs to be enrolled full time at the college or
university during periods of cooperative education employment. Institutions
should examine the student's enrollment history, and other factors, in
determining if the student's primary purpose for living in Virginia is for
educational purposes.
Article 2
Special Rules for Determining Domiciliary Residence
8VAC40-120-55. Extended eligibility for in-state tuition
rates. (Repealed.)
If the person through whom the dependent student or
unemancipated minor established such domicile and eligibility for in-state
tuition abandons his Virginia domicile, the dependent student or unemancipated
minor shall be entitled to such in-state tuition for one year from the date of
such abandonment. To qualify:
1. The parent, legal guardian, or spouse must have been
domiciled in Virginia for at least one full year prior to abandoning his
Virginia domicile.
2. The student must have been eligible for in-state tuition
rates vis-a-vis the above mentioned person at the time of abandonment.
8VAC40-120-60. Unemancipated minors. (Repealed.)
A. An unemancipated minor automatically takes the domicile
of his parents or legal guardian.
B. If the unemancipated minor is in the care of a legal
guardian, the minor takes the domicile of the legal guardian unless there are
circumstances indicating that the guardianship was created primarily for the
purpose of conferring a Virginia domicile on the minor. With parents surviving,
the guardianship must have been created by law, such as through a court order.
A copy of the court decree should routinely be required as proof of legal
guardianship.
C. When the domicile and residence of the student's parents
differ, the domicile of the unemancipated minor may be either:
1. The domicile of the parent with whom he resides;
2. The domicile of the parent who claims the minor as a
dependent for federal and Virginia income tax purposes, currently and for the
tax year prior to the date of alleged entitlement; or
3. The domicile of the parent who provides substantial
financial support.
For example, if a minor lives with the mother, but the
father, who is a Virginia domiciliary, claims the minor as a dependent on his
federal and Virginia income tax returns, the minor may claim Virginia domicile
through the father.
8VAC40-120-70. Dependent children. (Repealed.)
A. A dependent child is a student who is listed as a
dependent on the federal or state income tax return of his parents or legal guardian
or who receives substantial financial support from his parents or legal
guardian.
1. A dependent child is not required to live with a parent
or legal guardian.
2. A dependent child does not have to be a full-time
student.
B. When the domicile and residence of the student's parents
differ, the domicile of the unemancipated minor may be either:
1. The domicile of the parent with whom he resides;
2. The domicile of the parent who claims the minor as a
dependent for federal and Virginia income tax purposes currently and for the
tax year prior to the date of alleged substantial financial support; or
3. The presumption is that the student has the domicile of
the parent described in either 8VAC40-120-60 C 2 or 3.
For example, if a minor lives with his mother, but the
father, who is a Virginia domiciliary, claims the minor as a dependent on his
federal and Virginia income tax returns, the minor is rebuttably presumed to
have Virginia domicile through his father.
C. Presumption of dependency for students under 24.
1. A student under age 24 on the date of the alleged
entitlement shall be rebuttably presumed to receive substantial financial
support from his parents or legal guardian and therefore is presumed to be a
dependent child, unless the student:
a. Is a veteran or an active duty member of the U.S. Armed
Forces;
b. Is a graduate school or professional school student;
c. Is married;
d. Is a ward of the court or was a ward of the court until
age 18;
e. Has no adoptive or legal guardian when both parents are
deceased;
f. Has legal dependents other than a spouse; or
g. Is able to present clear and convincing evidence of
financial self-sufficiency.
2. Institutions should examine the student's application
carefully to determine if the student meets one of exceptions (a) through (f).
The burden is on the student to provide clear and convincing evidence of
financial self-sufficiency under exception (g).
3. The presumption of dependency closely follows the federal
financial aid definition of dependent student.
4. If the student is 24 or older, there is no presumption of
dependency on parents nor is there a presumption of independence. The student
may be classified as an independent student unless the student presents
evidence of financial dependency on his parents, legal guardian, or spouse,
that is, the student receives substantial financial support from parents, legal
guardian, or spouse or is listed on a parent's or legal guardian's federal or
state income tax returns as a dependent.
D. Tax dependency and substantial financial support. A
student 24 years old or older may still be a dependent student if the amount of
support he receives from a parent or legal guardian would qualify him to be
claimed as a tax dependent and the student is listed as a dependent on the
federal or state income tax returns of his parents or legal guardian.
1. Normally, a student will be classified as a dependent of
the parent or legal guardian who provides more than one half of the student's
expenses for food, shelter, clothing, medical and dental expenses,
transportation, and education.
2. Only financial support provided by the parent or legal
guardian is considered. Earned income of the student paid by parent or legal
guardian for bona fide employment is not counted as part of the parental or
guardian support; however, gifts of money, or other things of value, from the
parent or legal guardian to the student are counted toward the parental legal
or guardian support to the extent that the student relies upon it for support.
E. A student who is financially dependent upon one or both
parents may rebut the presumption that the student's domicile is the same as
the parent claiming him as an exemption on federal or state income tax returns
currently and for the tax year preceding the date of alleged entitlement or who
provides him with substantial financial support.
1. When domiciles of the parents are different, and the
parent claiming the student as a dependent for income tax purposes is domiciled
in another state, the student may rebut this presumption by showing residence
with the other parent, who is a Virginia domiciliary.
2. A dependent student 18 years of age or older may also
rebut the presumption that the student has the domicile of the parent claiming
the student as a dependent for income tax purposes by showing that Virginia
domicile was established independent of the parents. The burden is on the
student to show by clear and convincing evidence that he has established a
Virginia domicile independent of the out-of-state parents despite the fact that
the parents are claiming the student as a dependent for income tax purposes or
providing substantial financial support.
3. Finally, a student may rebut the presumption that the
student has the same domicile as an out-of-state parent by offering clear and
convincing evidence that the parent misreported the student as a dependent for
tax purposes.
F. Military dependent children.
1. When determining the domiciliary status of a student whose
parent is a member of the military, the institution should always first
determine if the military parent or the nonmilitary parent is a Virginia
domiciliary. A military parent may reside in Virginia but choose not to claim
Virginia as his domicile and has the right to choose another state as his home
state for taxation of military income purposes.
a. Paying taxes to Virginia on all military income is
evidence that the military parent is a Virginia domiciliary resident and should
be evaluated with all of the applicable factors to determine domiciliary
intent. To pay taxes to Virginia on military income, the military member must
change the Leave and Earnings Statement to authorize the withholding of
Virginia income tax.
b. Active-duty military members do not have to satisfy the
one-year requirement for the existence of the factors showing domiciliary
intent, nor do dependent children claiming Virginia domicile through them. A
dependent child of a military member claiming domicile through the military member
becomes eligible for in-state tuition immediately after the military member has
taken actions to establish domicile in Virginia.
c. If the military parent claims another state as his
income tax situs while stationed in Virginia, the parent is not a Virginia
domiciliary.
2. If the student's nonmilitary parent is a Virginia
domiciliary and the requisite one-year period is met, the dependent child may
claim domicile through the nonmilitary parent and receive in-state rates if the
student is claimed as a dependent of the nonmilitary parent.
a. As with anyone else, the strength of the nonmilitary
parent's ties to Virginia should withstand scrutiny.
b. In addition to the factors listed in 8VAC40-110-40 E,
the institution should consider the duration of residence in Virginia and the
nonmilitary parent's domiciliary history. Evidence that the nonmilitary parent
has accompanied the military parent on each tour of duty outside Virginia and
taken steps to establish domicile in other states may show that the nonmilitary
parent has not established a Virginia domicile independent of the military
parent.
3. a. If one of the parents is a Virginia domiciliary, the
student may claim eligibility through that parent, provided that the student is
a dependent of that parent (see subsection A of this section).
b. The institution should consider the requirements of the
military exception (see Part III) only if the student is not eligible under
this section as a dependent of a parent (military or nonmilitary) who is a
domiciliary of Virginia.
8VAC40-120-80. Independent students. (Repealed.)
A. An independent student is one whose parents have
surrendered the right to his care, custody and earnings, do not claim him as a dependent
on federal or state income tax returns, and have ceased to provide him
substantial financial support.
B. Students under age 24 are presumed to be financially
supported by their parents or legal guardians unless the student rebuts the
presumption through one of the seven factors mentioned under 8VAC40-120-70 C 1.
C. Unless the student rebuts the presumption of dependency
through one of the seven factors mentioned in 8VAC40-120-70 C 1, or is an
emancipated minor then, due to the one-year requirement, the earliest an
independent student could become eligible for in-state rates by virtue of
having established an independent domicile in Virginia would be on the
student's 19th birthday.
8VAC40-120-90. Emancipated minors. (Repealed.)
A. By virtue of having been emancipated prior to reaching
age 18, an emancipated minor becomes eligible to establish a domicile independent
of his parents. The earliest an emancipated minor could become eligible for
in-state tuition is one year after the date of emancipation. A student who
establishes Virginia domicile through his parents or legal guardians prior to
emancipation is eligible for in-state tuition upon emancipation.
B. Emancipation requires that the parents or legal guardian
surrender the right to the child's care, custody, and earnings and no longer
claim him as a dependent for income tax purposes; that is, the child is not
financially supported by his parents or legal guardian or other person and is
not under or subject to the control or direction of his parents, legal
guardian, or other custodian.
1. A minor's declaration of emancipation is not conclusive.
For example, a minor who runs away from home is not necessarily emancipated,
even though the minor may not desire any further contacts with the parents or
legal guardian.
2. The parents or legal guardian must no longer support the
minor, and they must recognize the minor's right to retain earned wages and to
live independently of them beyond their direction or control.
3. If the parents or legal guardian list the minor as a
dependent on income tax returns, he is not emancipated. A student who claims
emancipation from his parents or legal guardian must provide evidence of
emancipation, either that the parents or legal guardian consider the student
emancipated and do not claim the student as a tax dependent. The institution
may require a copy of the tax returns if needed to substantiate the claimed
emancipation.
8VAC40-120-100. Married persons. (Repealed.)
A. The domicile of a married person may be determined in
the same manner as the domicile of an unmarried person. A person's domicile is not
automatically altered by marriage. Institutions should never presume that an
individual is financially dependent on a spouse.
B. Marriage may be a factor in determining whether or not
an individual under age 18 is emancipated from the parents, but it is not
conclusive. A person under age 24 who is married is presumed to be independent
of his parents.
C. Dependent spouses.
1. An employed spouse may choose to claim dependency on and,
therefore, domicile through a spouse if the individual receives substantial
financial support from the spouse.
2. Substantial financial support is at least one-half of the
total financial support required for that person.
3. The dependent spouse "stands in the shoes" of
the person providing the support. Therefore, the dependent spouse's actions in
establishing or not establishing domicile in Virginia are irrelevant. The
institution should only consider whether the person through whom the applicant
is claiming dependency has met the requirements for establishing domicile.
D. Military dependent spouses.
1. A dependent spouse may claim Virginia domicile through a
military member after the military member has taken actions to establish
domicile in Virginia, including paying Virginia state income taxes.
2. Since the dependent spouse is standing in the shoes of
the military member, there is no one-year domicile requirement.
3. An institution should only apply the requirements of the
military exception (see Part III) if the spouse has not established eligibility
as a Virginia domiciliary for the required one-year period prior to the date of
alleged entitlement.
4. Spouses of military members do not have to be employed to
establish domicile in Virginia. All individual ties to Virginia should be
considered.
E. The domicile of a dependent spouse is generally
considered to be that of the supporting spouse. However, the dependent spouse
retains the right to provide evidence demonstrating his own unique ties to
Virginia thus establishing a separate domicile.
8VAC40-120-110. Aliens. (Repealed.)
A. The mere fact that a person is a citizen of another
country does not automatically disqualify the person from establishing domicile
in Virginia. When a foreign national claims Virginia domicile, the institution
must initially examine the federal immigration documents controlling the
alien's purpose and length of stay in the United States. (For immigrants, this
is usually Form I-551, "the Green Card"; for nonimmigrants, it is
Form I-94, "the Arrival/Departure Card".)
1. The purpose of examining immigration documents is to
determine whether the alien is required to maintain a foreign domicile, as well
as the terms and conditions governing the alien's presence in the United States
relevant to evaluating the claim of Virginia domicile for the requisite
one-year period.
2. If the immigration documents indicate that a person
cannot establish domicile then the student is not eligible for in-state tuition
rates.
3. Federal immigration laws are complex and ever evolving.
Treaties may also be controlling. The burden is upon the student claiming
Virginia domicile to bring pertinent information to the attention of the
institution.
B. An institution should preliminarily determine under
which alien category the student falls and then proceed with the evaluation of
domicile in accordance with this chapter.
1. Immigrants are admitted for permanent residence.
2. Nonimmigrants are admitted for specific time periods and
for particular purposes (e.g., tourism, study, or temporary employment).1
3. The remainder may be persons who are on a paroled status
or granted asylum.
C. In reviewing the domiciliary intent factors, keep in
mind that there may be factors, such as voter registration, which are
inapplicable to foreign nationals by law.
1. Aliens cannot register to vote.
2. Salaries paid to some non-U.S. citizens are exempt from
federal and state taxation.
3. In such instances, a record of nonvoting or nonpayment of
taxes is immaterial to the domicile consideration. Unless the institution is
aware of the inapplicability of any evidentiary factor, the responsibility and
burden is always on the student to bring such information to the attention of
the institution.
D. An alien may claim eligibility for in-state tuition
through the Virginia domicile of the student's parent, like any other student.
An alien may claim eligibility for in-state tuition through the Virginia
domicile of the student's spouse if the student demonstrates dependency on that
spouse.
E. Aliens holding Form I-551 (green cards) are lawfully
admitted as immigrants for permanent residence in the United States.2 Such
individuals are not prohibited from forming domicile in this country. Thus,
immigrants may claim, and seek to show, eligibility for in-state tuition rates
as Virginia domiciles as any citizen of the United States. The burden is on the
student to establish, clearly and convincingly, domicile in Virginia for the
requisite one-year period.
F. Conditional permanent resident aliens.
1. A person, and that person's children, may acquire
permanent resident status through marriage to a United States citizen or lawful
permanent resident. In order to discourage fraudulent applications based on
sham marriages, the Immigration and Naturalization Service, pursuant to the
Immigration and Nationality Act, is now issuing two-year
"conditional" Alien Registration Receipt Cards (Form I-551) to such
persons. These differ from the regular Form I-551 only insofar as there is an
expiration date on the back. During the last 90 days of the two-year period,
the couple must appear before the INS and file a petition to remove the
condition, swearing under oath that the marriage was and is valid, and that it
was not entered into for the purpose of procuring an alien's entry as an
immigrant.
2. In these cases, the institution should assume that the
conditional basis will be removed and analyze the alien as a lawful permanent
resident; however, the institution should verify at the appropriate time that
the conditional basis of the alien's permanent resident status has in fact been
removed. If permanent residence status is terminated by Immigration (which will
occur if the Immigration and Naturalization Service (INS) finds that the
marriage was fraudulent, among other reasons), the institution may, in
accordance with the policies concerning falsification of information (see
8VAC40-120-130), reconsider the student's application for in-state status to
determine whether it was fraudulent. If so, the institution may change the
student's status retroactive to the term for which the fraudulent application
was made.
G. Legalization (amnesty) program.
1. The Immigration Reform and Control Act provides for the
legalization of aliens who establish that they were in the United States
illegally as of January 1, 1982, and maintained continuous residence
thereafter.
2. Holders of Form I-688A or I-688 are eligible to receive
in-state tuition rates upon the requisite showing of Virginia domicile for the
one-year period.
3. The standards for adjustment to permanent resident status
for a special group of agricultural workers (SAWs) who worked in seasonal
agricultural services between May 1, 1985, and May 1, 1986, are even more liberal
than for the main legalization program. Applications for in-state status from
SAWs who have been issued Form I-688 should be analyzed in the same manner as
legalized immigrants.
H. Political refugees/asylees and parolees.
1. Political refugees/asylees are generally admitted into
the United States for an indefinite period of time without domiciliary
restriction. They usually carry Form I-94 endorsed to show either refugee or
asylee status. Although some of the I-94s may have an expiration date, e.g.,
one year, they are usually renewed indefinitely until the person adjusts to
permanent resident status. Like immigrants, such political refugees and asylees
are eligible for in-state tuition rates upon clear and convincing evidence that
for the period of at least one year prior to the date of alleged entitlement,
they were domiciled in Virginia and abandoned any previous domicile.
2. A parolee is an alien, appearing to be inadmissible to
the inspecting officer, allowed into the United States for urgent humanitarian
reasons or when that alien's entry is determined to be for significant public
benefit. Parole does not constitute a formal admission to the United States. It
confers temporary status only and requires parolees to leave when the
conditions supporting their parole cease to exist. Types of parolees include
deferred inspection, advance parole, port-of-entry parole, humanitarian parole,
public interest parole, and overseas parole. Due to the temporary nature of the
admission in the United States, parolees are not eligible to establish Virginia
domicile.
I. Undocumented and illegal aliens. Students unable to
present valid, current INS documentation of their alien status are not eligible
for in-state tuition.
J. Nonimmigrants.
1. Unlike immigrants, nonimmigrants are authorized entry
into the United States temporarily for specific purposes.
2. a. The document showing their admission status is the
Arrival-Departure Record (Form I-94), which is usually stapled into the
passport. This form normally contains the nonimmigrant visa category under
which the alien is admitted and an expiration date.
b. The nonimmigrant visa is a stamp placed on one of the
pages of the alien's passport. It is useful to distinguish between the
nonimmigrant visa and Form I-94. A visa does not guarantee entry, it merely
allows a person to board a plane whose destination is the United States and to
apply for admission at the border. Form I-94 determines whether the alien will
be admitted and how long he will be permitted to stay. When the expiration
dates of the visa and the I-94 are different, the I-94 controls.
c. Institutions should also examine a nonimmigrant's
Employment Authorization Document for evidence of permission to work in the
United States.
3. Eligibility to establish domicile.
a. Several of the categories listed below indicate that
holders of these visas are eligible to establish domicile in Virginia. This
does not mean that the individual should be conferred domiciliary status, but
merely that the student be allowed to present evidence of domiciliary intent as
would be presented by a U.S. citizen attempting to establish domicile. A visa
holder must present clear and convincing evidence of domiciliary intent and
satisfy the one-year durational requirement to receive in-state tuition.
b. Aliens who enter the United States under those
categories indicated as ineligible are prohibited by federal and state law to
form domicile in the United States. As a condition of entry, such aliens have
pledged, and are required, to retain their foreign residence while living
temporarily in this country.
c. Minor children or dependent children of aliens who enter
the United States under any of the ineligible visa categories are similarly
ineligible to establish Virginia domicile. As with anyone else, the person
through whom eligibility is claimed must have been a Virginia domiciliary for
the requisite one year.
4. The present nonimmigrant visa categories are described
below. The function of the institution is not to judge the appropriateness of
the alien's classification but to analyze the claim of domicile, taking into
account the terms and conditions of the classification and the expiration date
as it appears on the I-94.
a. (1) A-1: Ambassador, public minister, career diplomat,
or consular officer accredited by a foreign government and recognized by the
Secretary of State, and immediate family.
(2) A-2: Other foreign government official or employee
accepted by Secretary of State, and immediate family.
(3) A-3: Attendant, servant, or personal employee of A-1 or
A-2, and immediate family.
(4) A-1, A-2, and A-3 visa holders are eligible to
establish domicile.
b. (1) B-1: Temporary visitor for business having residence
in a foreign country which he has no intention of abandoning.
(2) B-2: Temporary visitor for pleasure having residence in
a foreign country which he has no intention of abandoning.
(3) B-1/B-2: Temporary visitor for pleasure and business
having residence in a foreign country which he has no intention of abandoning.
(4) B-1, B-2, and B-1/B-2 visa holders are ineligible to
establish domicile.
c. (1) C-1: Alien in immediate and continuous transit
through the United States.
(2) C-2: Alien in transit to United Nations headquarters.
(3) C-3: Foreign government official, members of immediate
family, attendant, or servant, who is in transit through the United States.
(4) C-1, C-2, and C-3 visa holders are ineligible to
establish domicile.
d. D: Alien crewman serving on board a vessel or aircraft,
who intends to land temporarily and solely in pursuit of his duties and to
depart with the vessel on which he arrived or on another vessel. D visa holders
are ineligible to establish domicile.
e. (1) E-1: Alien and immediate family permitted to enter the
United States under treaty to engage in substantial trade. Allowed to remain in
the United States as long as business requires.
(2) E-2: Alien and immediate family permitted to enter
United States under treaty for investment purposes. Allowed to remain in the
United States as long as investment purposes require.
(3) E-1 and E-2 visa holders are eligible to establish
domicile.
f. (1) F-1: Bona fide student permitted entry solely for
purpose of pursuing a full course of study, having a residence in a foreign
country which he has no intention of abandoning.
(2) F-2: Spouse or child of F-1, having a residence in a
foreign country which he has no intention of abandoning.
(3) F-1 and F-2 visa holders are ineligible to establish
domicile.
g. (1) G-1: Principal resident representative of recognized
foreign member government to international organization, staff, and members of
immediate family.
(2) G-2: Other representative of recognized foreign member
government to international organization and immediate family.
(3) G-3: Representative of nonrecognized or nonmember
foreign government to international organization and members of immediate
family.
(4) G-4: Officer or employee of an international
organization, and members of immediate family.
(5) G-5: Attendant, servant, or personal employee of G-1,
G-2, G-3, and G-4 classes and members of immediate family.
(6) G-1, G-2, G-3, G-4, and G-5 visa holders are eligible
to establish domicile.
h. (1) (a) H-1A: Alien coming to the United States to perform
services as a registered nurse.
(b) H-1B: Specialty occupation workers.
(2) (a) H-2A: Alien temporarily in the United States to
perform agricultural labor or services and who has residence in a foreign
country which he has no intention of abandoning.
(b) H-2B: Alien temporarily in United States to perform
nonagricultural labor or services and who has a residence in a foreign country
which he has no intention of abandoning.
(3) H-3: Trainee having a residence in a foreign country
which he has no intention of abandoning.
(4) H-4: Spouse or child of alien classified as H-1, H-2,
or H-3; if spouse or parent holds a H-2 or H-3, has a residence in a foreign
country which he has no intention of abandoning.
(5) H-1 and H-4 accompanying H-1 visa holders are eligible
to establish domicile; H-2, H-3, and H-4 accompanying H-2 or H-3 visa holders
are ineligible to establish domicile.
i. I: Representative of foreign information media, spouse,
and children. I visa holders are eligible to establish domicile.
j. (1) J-1: Exchange visitor under educational program
designated by Secretary of State and having a residence in a foreign country
which he has no intention of abandoning.
(2) J-2: Spouse or child of exchange visitor and having a
residence in a foreign country which he has no intention of abandoning.
(3) J-1 and J-2 visa holders are ineligible to establish
domicile.
k. (1) K-1: Fiance or fiancee of United States citizen who
seeks to enter the United States solely to conclude a valid marriage in 90
days.
(2) K-2: Minor child of K-1 visa holder.
(3) K-1 and K-2 visa holders are eligible to establish
domicile.
l. (1) L-1: Intra-company transferee (executive,
managerial, specialized personnel) continuing employment with international
firm or corporation.
(2) L-2: Spouse or minor child of alien classified as L-1.
(3) L-1 and L-2 visa holders are eligible to establish
domicile.
m. (1) M-1: Vocational or other recognized nonacademic
student having residence in a foreign country which he has no intention of abandoning.
(2) M-2: Spouse or minor child of M-1, having residence in
a foreign country which he has no intention of abandoning.
(3) M-1 and M-2 visa holders are ineligible to establish
domicile.
n. (1) N-8: The parent of an alien who has been accorded the
status of special immigrant, but only if and while the alien is a child; or the
child of such a parent accorded the status of special immigrant.
(2) N-9: Minor child of N-8.
(3) N-8: and N-9: Visa holders are eligible to establish
domicile.
o. (1) O-1: An alien with extraordinary ability in the
sciences, arts, education, business, or athletics who is in the United States
to continue work in this area, and immediate family, having a foreign residence
which he does not intend to abandon.
(2) O-2: An alien entering the United States solely to
assist in the artistic or athletic performance by an alien who is admitted
under an O-1 visa, and immediate family, having a foreign residence which he
does not intend to abandon.
(3) O-3: Minor child of O-1 or O-2.
(4) O-1, O-2, and O-3 visa holders are ineligible to
establish domicile.
p. (1) P-1: An alien who is an athlete or entertainer of
international reputation and is in the United States temporarily and solely for
the purpose of performing, or the spouse or child of such an alien, who has a
foreign residence which he does not intend to abandon. P visa holders are
ineligible.
(2) P-2: Artist or entertainer in reciprocal exchange
program.
(3) P-3: Artist or entertainer in a culturally unique
program.
(4) P-4: Spouse or child of P-1, P-2, or P-3.
(5) P visa holders are ineligible to establish domicile.
q. Q: An alien having a foreign residence that he has no
intention of abandoning who is in the United States for a period not to exceed
15 months as a participant in an international cultural exchange program
designated by the U.S. Attorney General. Q visa holders are ineligible to
establish domicile.
r. (1) R-1: An alien, who for the two years immediately
preceding the time of application for admission to the country has been a
member of a religious denomination having a bona fide, nonprofit religious
organization in the United States, coming into the U.S. to carry on activities
of a religious worker.
(2) R-2: Spouse or child of R-1.
(3) R-1 visas have a maximum duration of five years. R-1
visa holders, and their dependents are, therefore, ineligible for in-state
tuition benefits.
s. (1) S-5: An alien witness or informant who the
Immigration and Naturalization Service (INS) determines is in possession of
information concerning a criminal organization or enterprise and where presence
in the U.S. is essential to the success of an authorized criminal
investigation.
(2) S-6: An alien witness or informant who the Secretary of
State and INS jointly determine is in possession of critical reliable
information concerning a terrorist organization, enterprise, or operation.
(3) S-7: Spouse, children, and parents following to join an
S-5 or S-6 visa holder.
(4) S-5, S-6, and S-7 visa holders are ineligible to
establish domicile.
t. (1) TN: NAFTA professional. A Canadian or Mexican
citizen admitted temporarily to perform specific professional functions as
outlined in the North American Free Trade Agreement.
(2) TD: Spouse or child of NAFTA professional.
(3) TN and TD visa holders are ineligible to establish
domicile.
u. (1) NATO-1: Principal permanent representative of member
of state to NATO, and resident staff and immediate family.
(2) NATO-2: Other representative to NATO, including
dependents of member of force entering U.S. in accordance with the NATO Status
of Forces Agreement.
(3) NATO-3: Official clerical staff and immediate family
accompanying NATO-1 or NATO-2 holder.
(4) NATO-4: Official of NATO (other than NATO-1) and
immediate family.
(5) NATO-5: Expert, other than NATO officials classifiable
under NATO-4, employed on mission on behalf of NATO and dependents.
(6) NATO-6: Member of civilian component accompanying a
force entering U.S. in accordance with the NATO Status of Forces Agreement;
member of civilian components employed by Allied Headquarters; and dependents.
(7) NATO-7: Attendant or servant of NATO-1, NATO-2, NATO-3,
NATO-4, NATO-5, and NATO-6.
(8) Aliens admitted into the United States, pursuant to the
NATO Status of Forces Agreement, who are members of the armed forces, are not
eligible under terms of this agreement to establish domicile in the United
States.3 Since the domicile prohibition of the NATO agreement does not apply to
civilians accompanying members of the armed forces, these individuals may be
able to establish domicile as any other person. The alien must demonstrate the
inapplicability of the treaty agreement and provide clear and convincing
evidence that he is eligible to establish domicile.
5. Pending status changes.
a. If a student is in a visa category that is ineligible to
establish domicile and the student petitions the federal government to
reclassify his restricted status to immigrant status, or some other eligible
nonimmigrant status, the student will continue to be ineligible despite the
petition for reclassification.
b. When such petition is acted favorably upon by the
federal government, the student may seek to prove Virginia domicile as anyone
else and may, in the interest of fairness, claim that such domicile existed
back to the date of the filing of the petition, not necessarily from the date
of reclassification by the federal government. An institution may require
evidence of the date that the reclassification was approved or petition filed,
or both.
For example, an alien here under a restricted visa may be
permitted by the U.S. Attorney General to remain indefinitely, and not be
deported, because of racial, religious, or political persecution in the home country.
The student should be prepared to submit evidence of the U.S. Attorney
General's decision.
c. In addition, an alien in the United States in an
ineligible visa category (O or R, for example) may become the beneficiary of an
approved I-140 or I-130 immigrant petition. If so, the alien may be eligible
for in-state tuition benefits, even while the alien's adjustment application is
pending, upon providing clear and convincing evidence of domicile.
18 USC 1101 (a) 15; 8 CFR 214 et seq.; 22 CFR 40-42.
2The front side of the card contains the photograph and
fingerprints of the alien and an eight-digit number preceded by the letter
"A". The reverse side of the card states that "the person
identified by this card is entitled to reside permanently and work in the
United States."
3NATO Statute of Forces Agreement, June 19, 1951, 4 U.S.T.,
1793, T.I.A.S. 2846. Article III thereof provides that the NATO force
"shall not be considered as acquiring any right to permanent residence or
domicile in the territories of the receiving State." It has also been held
that a member of the Royal Air Force of the United Kingdom stationed to a U.S.
Naval aircraft base in Virginia Beach, pursuant to a NATO visa, cannot be a
Virginia domicile for purposes of initiating a divorce suit in Virginia's state
courts. See official opinion of the Attorney General to delegate Howard E.
Copeland, dated May 16, 1983.
Article 3
Reclassification and Falsification of Information
8VAC40-120-120. Reclassification. (Repealed.)
A. Changes from out-of-state to in-state classification.
1. If a student is classified initially as out-of-state, it
is the responsibility of the student thereafter to petition the responsible
official for reclassification to in-state status if the student believes that
subsequent changes in facts justify such a reclassification. The institution
will not assume responsibility for initiating such an inquiry independently.
2. It is presumed that a matriculating student who enters an
institution classified as an out-of-state student remains in the Commonwealth
for the purpose of attending school and not as a bona fide domiciliary. The
student seeking status reclassification is required to rebut this presumption
by clear and convincing evidence.
3. The change in classification, if deemed to be warranted,
shall be effective for the next academic semester or term following the date of
the application for reclassification. No change to in-state status may be
obtained by a student for an academic term that has begun before the date of
the application for reclassification.
B. Changes from in-state to out-of-state classification.
1. If a student is classified initially as in-state, either
the student or the institution thereafter may initiate a reclassification
inquiry. It is the duty of the student to notify the institution of any changes
of address or domiciliary status.
2. The institution may initiate the reclassification inquiry
independently at any time after the occurrence of events or changes in facts
which give rise to a reasonable doubt about the validity of the existing
domiciliary classification.
3. A student who is eligible for in-state tuition as of the
date of entitlement is eligible for in-state rates throughout that term.
Therefore, a student whose classification changes from in-state to out-of-state
during a semester has a grace period that lasts until the end of that semester.
C. Changes due to administrative errors.
1. Administrative errors may include letters announcing an
incorrect domicile, actual misclassification, or incorrect tuition billing notices.
2. In the absence of fraud or knowingly providing false
information, where a student receives an erroneous notice announcing the
student to be, or treating the student as, eligible for in-state tuition, the
student shall not be responsible for paying the out-of-state tuition
differential for any enrolled semester or term commencing before the
classifying institution gives to the student written notice of the
administrative error.
8VAC40-120-130. Falsification of information. (Repealed.)
A. Where an institution has erroneously classified a
student as a Virginia domicile for tuition purposes resulting from the student's
knowingly providing erroneous information in an attempt to evade payment of
out-of-state fees, the application of the student is fraudulent.
B. An institution shall re-examine an application suspected
as being fraudulent and redetermine domicile status. If warranted, the
institution may change the student's status retroactively to the beginning of
the term for which a fraudulent application was filed. Such a retroactive
change will make the student responsible for the out-of-state tuition differential
for the enrolled term or terms intervening between the fraudulent application
and its discovery.
C. The student may also be subject to dismissal from the
institution or such other action as the institution deems proper. Due process
procedures, as provided in 8VAC40-120-270 and 8VAC40-120-280, must be followed
to dismiss the student and, if the student chooses, to appeal such action.
8VAC40-120-140. Student responsibility to register under
proper classification; responsibility for supplying information. (Repealed.)
A. It is the student's responsibility to register under proper
domicile classification.
B. If the student questions the right to classification as
a Virginia domiciliary it is the student's obligation, prior to or at the time
of registration, to raise the question with the administrative officials of the
institution and have such classification officially verified.
C. An applicant or enrolled student subject to either a
classification or reclassification inquiry is responsible for supplying all
pertinent information requested by the institution in connection with the
classification process. Failure to comply with such requests may result in one
of the following consequences:
1. Where the initial classification inquiry affects a
prospective enrollee, the student shall be classified out-of-state for tuition
purposes;
2. Where the reclassification petition is initiated by the
student to acquire a change from out-of-state to in-state status, the student
shall continue to be classified as out-of-state for tuition purposes; or
3. Where the reclassification inquiry anticipates a change
from in-state to out-of-state status for tuition purposes, the student may be
subjected to retroactive reclassification.
D. Each institution should provide in their student
catalogues, handbooks, etc., the standards of conduct and the procedures it
follows when dismissing a student or cancelling enrollment.
Part III
In-State Tuition Rates for Spouses and Dependent Children of Active-Duty
Military Members
8VAC40-120-150. General. (Repealed.)
A. Section 23-7.4:2(A) of the Code of Virginia deals with
spouses and dependent children of military personnel who do not otherwise
qualify for in-state tuition privileges, i.e., they are unable to show by clear
and convincing evidence that Virginia is their domicile.
B. Institutions should apply the provisions of this section
only if a military member, spouse, or dependent child is unable to present
sufficient evidence of establishing domicile. Military personnel, their spouse,
and dependent children are entitled to show eligibility for in-state tuition
rates in the same manner as nonmilitary personnel, except that the one-year
domicile period shall be waived for active duty military personnel (and their
dependent spouse or children) who voluntarily elect Virginia as their permanent
residence for domiciliary purposes.
8VAC40-120-160. Children of military members. (Repealed.)
Students who are the children of military members are also eligible
for in-state tuition rates when all of the following conditions are met:
1. The student is not a member of the armed forces;
2. One of the student's parents is a member of the armed
forces residing in Virginia pursuant to military orders; and
3. For the year immediately prior to the date of the alleged
entitlement, the student's nonmilitary parent has:
a. Resided in Virginia;
b. Been employed full-time;
c. Paid personal income tax to Virginia; and
d. Claimed the student as a dependent for Virginia and
federal income tax purposes. Filing a joint federal return claiming the student
as a dependent is sufficient as long as the nonmilitary parent claims the
student as a dependent for Virginia tax purposes.
8VAC40-120-170. Spouses of military members. (Repealed.)
Students who are spouses of military members are also
eligible for in-state tuition rates when all of the following conditions are met:
1. The student is not a member of the armed forces;
2. The student is the spouse of a member of the armed forces
residing in Virginia pursuant to military orders; and
3. For the year immediately prior to the date of alleged
entitlement, the spouse of the military person has:
a. Resided in Virginia;
b. Been employed full-time; and
c. Paid personal income tax to Virginia.
8VAC40-120-180. Application of military provision. (Repealed.)
A. Sections 8VAC40-110-160 and 8VAC40-110-170 of this
chapter apply only as long as the military member is residing in Virginia
pursuant to military orders and the nonmilitary parent or the spouse continues
to reside in Virginia, work full-time, and pay taxes to Virginia.
B. Eligibility for in-state tuition rates must be
re-evaluated annually by the institution.
C. All students receiving in-state tuition under the
military exception will be counted as out-of-state students for admissions,
financial aid, enrollment, and tuition and fee revenue policy purposes.
8VAC40-120-190. Grace period tuition. (Repealed.)
(Note: § 23-7.4:2(A)(iii) of the Code of Virginia which
grants one year of in-state tuition to the spouse and children of military personnel
has been suspended since the 1994-1996 biennium by § 4-2.01(b)(4) of the
appropriation act. Military members are not able to receive any benefit
outlined in this section until the suspension period ends.)
A. The spouse and dependent children of active duty
military personnel who reside in Virginia pursuant to military orders may be
eligible for in-state tuition rates for a one-year period anytime during the
period that the military parent or spouse is residing in Virginia.
1. The dependent child or spouse may take advantage of the
entitlement at any time during the period that the military person is residing
in Virginia.
2. Section 23-7.4:2(A)(iii) of the Code of Virginia refers
to the spouse and dependent children of military personnel and not the military
personnel themselves.
B. Requirements for one year of in-state tuition.
1. The military parent or spouse must reside in Virginia.
2. A student must be eligible to take advantage of this
benefit on the first official day of class.
3. The burden is on the student to provide copies of
military documents establishing his entitlement.
C. Institutions of higher education must identify and
report to the Council of Higher Education the number of students who are
eligible for in-state rates under this provision. A report form will be
distributed with the annual reports calendar.
D. Military personnel should be advised not only of the
temporary nature of the grace period, but also of the inherent limitations of §
23-7.4:2(A)(iii) of the Code of Virginia: the privileges are forfeited when the
military member is assigned to a new duty station away from Virginia.
8VAC40-120-200. Military members and domiciliary status. (Repealed.)
A. Eligibility for in-state tuition rates can be preserved by
the military member's adoption of Virginia domicile while residing in Virginia
as explained in Part II of this chapter.
1. To begin to establish domicile, a military member should
file a State of Legal Residence Certificate claiming Virginia domicile and
changing the Leave and Earning Statement to authorize the withholding of
Virginia income tax.
2. Other objective indicators of domicile include, but are
not limited to, obtaining a driver's license, registering a motor vehicle,
registering to vote, and showing that he has not established domicile in
another state or country.
3. Once established, Virginia domicile is not lost when the
military member leaves the Commonwealth pursuant to military orders, provided
that the member retains Virginia as state of legal residence and does nothing
inconsistent with the claim of Virginia domicile.
B. In determining the domiciliary intent of active-duty
military personnel residing in Virginia who voluntarily elect to establish
Virginia as their permanent residence for domiciliary purposes, the requirement
of one year shall be waived if all other conditions for establishing domicile
are satisfied.
C. Dependent children and dependent spouses of military
members may become eligible for in-state tuition by claiming dependency on a
military member who has satisfied the conditions for establishing domicile. The
requirement of one-year domicile shall be waived for children and spouses
claiming domicile through a Virginia domiciled military member.
Part IV
In-State Tuition Rates for Non Virginia Residents Employed in Virginia
8VAC40-120-210. Eligibility for in-state rates for
nonresidents employed in Virginia. (Repealed.)
A. A nondomiciliary student who physically lives outside
Virginia but who works full time in the Commonwealth may be eligible for
in-state tuition provided that the student:
1. Lives outside Virginia; meaning, the student commutes
from a residence outside Virginia to a work-site in Virginia;
2. Has been employed full time in Virginia for at least one
year immediately prior to the date of enrollment for which reduced tuition is
sought; and
3. Has paid Virginia income taxes on all taxable income
earned in the Commonwealth of Virginia for the tax year prior to the date of
alleged entitlement.
B. Students claimed as dependents for federal and Virginia
income tax purposes who live outside of Virginia will be eligible under this
exception if the nonresident parent claiming him as a dependent:
1. Lives outside Virginia; meaning, the parent commutes from
a residence outside Virginia to a work-site in Virginia;
2. Has been employed full-time in Virginia for at least one
year immediately prior to the date of alleged entitlement; and
3. Has paid Virginia income taxes on all taxable income
earned in Virginia for the tax year prior to the date of the alleged
entitlement.
(Note: Students may claim eligibility for in-state tuition
under this section only through dependency on parents. A nonresident dependent
spouse is not eligible for in-state tuition under this section through the
individual's spouse.)
C. Such dependent students shall continue to be eligible
for in-state tuition charges so long as they or their qualifying parent are
employed full time in Virginia, paying Virginia income taxes on all taxable
income earned in this Commonwealth, and claiming the student as a dependent for
Virginia and federal income tax purposes. It is incumbent upon the student to
provide to the institution current information concerning classification under
this category.
8VAC40-120-220. Application of provision. (Repealed.)
This part does not apply to individuals who reside in a
state with which Virginia has income tax reciprocity.1 Students who reside
in reciprocity states cannot qualify under this section for in-state tuition
rates; however, keep in mind that such students have the right to claim
in-state rates as Virginia domiciles or under the military spouse or dependent
provisions.
1As of June 2001, the states having income tax
reciprocity with Virginia are: Kentucky, Maryland, Pennsylvania, the District
of Columbia, and West Virginia.
Part V
Reduced or In-State Tuition Rates Under Special Arrangement Contracts
8VAC40-120-230. Reduced tuition under Special Arrangement
Contracts. (Repealed.)
A. Nondomiciliaries employed by a Virginia employer,
including federal agencies located in Virginia, may qualify for reduced tuition
rates if the employer assumes the total liability of paying the tuition of
these employees to the legal limit allowable through a Special Arrangement
Contract with the institution.
B. Instruction may be provided in groups or on an
individual basis on or off campus. (Group instruction is a collection of
individuals enrolled for a given course.)
C. This chapter applies to all instruction which is
reported to the Council of Higher Education for FTE purposes.
8VAC40-120-240. Application of provision. (Repealed.)
A. The public institution that the nondomiciliary wishes to
attend must have in force a valid Special Arrangement Contract with the
employer in order for the student to qualify for reduced tuition charges.
1. The employer must be assuming the liability for the total
tuition charges of its employee unless limited by federal law in which case the
employee is responsible for the remaining portion.
2. The tuition charged to the employer shall be at least
equal to in-state tuition fees, but the public institution of higher education
may specify tuition charges in the Special Arrangement Contract that are
greater than in-state tuition charges but less than out-of-state charges.
3. The reduced tuition charges are available only to the
employee and not to his spouse or dependent children.
B. The public institution of higher education wishing to
enter into a Special Arrangement Contract shall:
1. Negotiate with the employer or federal authority a
Special Arrangement Contract which would specify the term of the contract (not
to exceed two years) and the amount of tuition to be charged to the employer.
2. Forward the proposed Special Arrangement Contract to the
Office of the Attorney General for approval as to legal sufficiency prior to
signing.
3. Annually report all special arrangement activities to the
Council of Higher Education.
4. Specify for any Special Arrangement Contracts with
federal authorities for on-campus instruction the number of FTE students to be
enrolled at the contract rate.
C. Virginia employers and federal agencies or installations
located in Virginia, including all branches of the U.S. military, may enter
Special Arrangement Contracts and may receive in-state tuition for their
employees if the employee:
1. Has a primary work-site in Virginia; meaning, the
employee works on a day-to-day basis at a location physically in the state of
Virginia; or
2. Is ordered to a station, military base, or office located
in the state of Virginia, even if the individual's primary work-site is located
outside Virginia.
D. Independent of a Special Arrangement Contract, the
employee must have his domicile determined by the public institution of higher
education. Employees covered by Special Arrangement Contracts must also be
included in all enrollment reports according to domicile, as is any other
student. The institution shall report those students who meet the domicile
requirements as in-state students and those students who do not meet the
domicile requirements but are eligible for in-state tuition under this section
as out-of-state students.
Part VI
Reduced or In-State Tuition Rates for Other Nonresidents
8VAC40-120-250. In-state tuition eligibility. (Repealed.)
A. The Code of Virginia provides in § 23-7.4:2(D) that the governing
boards of any state institution may charge in-state tuition to (i) persons
enrolled in programs designated by the State Council of Higher Education for
Virginia who are from states which are a party to the Southern Regional
Education Compact and provide reciprocity to Virginians; (ii) foreign nationals
in foreign exchange programs approved by the state institution during the same
period that an exchange student from the same state institution, who is
entitled to in-state tuition pursuant to § 23-7.4 of the Code of Virginia, is
attending the foreign institution; and (iii) high school or magnet school
students under a dual enrollment agreement with a community college where early
college credit may be earned. In such circumstances, governing board policy
should be consulted and the provisions of the cited statute reviewed.
B. Pursuant to § 23-7.4:2(E) of the Code of Virginia, the
governing board of the Virginia Community College System may charge reduced
tuition to any person who lives within a 30-mile radius of a Virginia
institution and is enrolled in one of the system's institutions who is
domiciled in, and is entitled to in-state charges in, the institutions of
higher learning in any state which is contiguous to Virginia and which has
similar reciprocal provisions for persons domiciled in Virginia.
C. Pursuant to § 23-7.4:2(F) of the Code of Virginia, the
advisory board of the University of Virginia's College at Wise and the Board of
Visitors of the University of Virginia may charge reduced tuition to any person
enrolled in the University of Virginia's College at Wise who lives within a
50-mile radius of the college, is domiciled in, and is entitled to in-state
tuition charges in the institutions of higher learning in Kentucky, if Kentucky
has similar provisions for persons domiciled in Virginia.
8VAC40-120-260. Reduced tuition rates, waiver of tuition and
fees, and other benefits. (Repealed.)
The Code of Virginia authorizes institutions to provide
certain benefits to several categories of students, including, but not limited
to: children of persons killed or disabled due to war service or who are
prisoners of war or missing in action (§ 23-7.4:1(A) of the Code of Virginia);
children and spouses of certain law-enforcement officers, correctional and jail
personnel, sheriffs, members of the Virginia National Guard, fire fighters, and
members of rescue squads (§ 23-7.4:1(B)§ of the Code of Virginia); certain
foreign exchange students (§ 23-7.4:1(D) of the Code of Virginia); certain
National Guard members (§ 23-7.4:2(C) of the Code of Virginia); cooperating
teachers (§ 23-8.2:1 of the Code of Virginia); students receiving unfunded
scholarships (§ 23-31 of the Code of Virginia); and senior citizens under the
Senior Citizen's Higher Education Act (§ 23-38.56 of the Code of Virginia).
It is the student's responsibility to timely notify the
institution of his eligibility under one of these provisions and to provide
supporting evidence. Institutions should refer to the relevant provisions of
the Code of Virginia.
Part VII
Appeals Process
8VAC40-120-270. Institutional appeals process. (Repealed.)
A. Public institutions of higher education in Virginia are
required to establish an appeals process for applicants denied in-state
tuition. Each institution is required to have in place such an appeals process
which includes the following:
1. An intermediate review of the initial determination; and
2. A final administrative review including a decision in
writing, clearly stated with explanation, and reached in accordance with the
statute and this chapter. The letter should also clearly explain that the decision
is final unless the student appeals it to the circuit court within 30 days
after receiving the decision. The institution shall provide a copy of the
decision to the student and obtain a legal signature confirming receipt of the
decision.
B. A student seeking reclassification based on activities
that have taken place since the last domicile determination must begin at the
initial level with the right to a subsequent intermediate and final review.
C. Either the intermediate review or the final administrative
review shall be conducted by an appeals committee consisting of an odd number
of members.
D. No person who serves on a committee at one level of the
appeals process shall be eligible to serve on a committee at any other level of
this review.
E. In order to provide for the orderly and timely
resolution of all disputes, the appellate procedure of the institution must be
in writing and must state time limitations in which decisions will be made.
8VAC40-120-280. Appeal to circuit court. (Repealed.)
A. An applicant who is denied in-state tuition privileges
by a final administrative decision may have the decision reviewed by the circuit
court for the jurisdiction where the public institution is located. The student
must file the petition for review of the final administrative decision within
30 days of receipt of the final decision. Each institution should record the
date of actual receipt by certified mailing (return receipt).
B. Upon the filing of a petition for review with the court,
and being noticed thereof, the institution shall:
1. Immediately advise legal counsel for the institution that
a petition for review has been filed with the circuit court; and
2. Coordinate with legal counsel to file with the court a
copy of this chapter, the application forms, all other documentary information
considered by, or made available to, the institution, and the written decisions
of the institution.
C. As provided by law, the court's function shall be only
to determine whether the decision reached by the institution could reasonably
be said, on the basis of the record, not to be arbitrary, capricious or
otherwise contrary to law.