The Justice Department sued the Commonwealth Dec. 29 over a state law that allows undocumented immigrants to receive in-state tuition at public universities. In its argument, the Justice Department said that current law gives the immigrant students an unfair educational benefit over students that are U.S. citizens and pay out-of-state tuition. Virginia Attorney General Jason Miyares (R) entered into a consent agreement with the federal government Dec. 30, just a day after the lawsuit was filed.
The parties — Virginia and the Justice Department — jointly submitted a motion to the U.S. District Court requesting for the Eastern District Court of Virginia to enter a permanent injunction — a final court order — prohibiting undocumented immigrants from receiving tuition aid if they met state law qualifications. Miyares issued a statement on X about the settlement, backing his decision to end the tuition assistance.
"Illegal immigrants cannot be given benefits that are not available to American citizens. Rewarding non-citizens with the privilege of in-state tuition is wrong and only further incentivizes illegal immigration,” Miyares’ statement reads. “I am proud to play a part in ending this unlawful program."
The University’s in-state tuition for the 2025-2026 school year is $23,897. Out-of-state tuition is $62,923 — a 163.3 percent increase from in-state tuition.
In the lawsuit, the Justice Department claims that current Virginia law allows undocumented immigrants to pay in-state tuition and receive state-administered financial assistance while U.S. citizens from other states must pay higher out-of-state tuition rates. According to the lawsuit, these policies are both morally wrong and illegal.
“Federal law prohibits states from providing aliens who are not lawfully present in the United States with any postsecondary education benefit that is denied to U.S. citizens,” the lawsuit wrote. “There are no exceptions. Virginia violates it nonetheless.”
According to Higher Ed Immigration Portal, there are 13,122 undocumented students enrolled in a higher education program in the Commonwealth, making up approximately 2.6 percent of the total population of students. The University does not disclose the number of undocumented students enrolled.
If Miyares’ agreement is approved in court, undocumented students could lose in-state tuition status immediately. Some students could potentially be forced to drop out mid-year, according to a press release on behalf of the Dream Project, the Legal Aid Justice Center and the American Civil Liberties Union of Virginia. These three groups announced that they had filed an emergency motion Wednesday to intervene, asking that the court hear student input before coming to a final decision. Anyone with “standing” — direct legal interest — may file an emergency motion in a case.
Current state law — House Bill 1547 — states that undocumented students may access in-state tuition if they attended high school for at least two years in the Commonwealth. In addition, students must meet other requirements such as graduating from a public, private or home instruction high school in the Commonwealth or passing a high school examination approved by the Secretary of Education, and they must also submit evidence of filed taxes. H.B. 1547 went into effect July 1, 2020.
H.B. 1179 was signed into law April 6, 2020, which provides certain refugees with a Special Immigrant Visa access to in-state tuition. Senate Bill 1387 extended state-funded financial aid to undocumented students in 2022.
The Justice Department, led by U.S. Attorney Jonathan H. Hambrick, cited 8 U.S. Code § 1623 in the lawsuit— an unlawful immigrant may not receive higher education benefits over a lawful U.S. resident. The lawsuit also evoked the Supremacy Clause to argue that current state tuition policies are unconstitutional — the lawsuit claims that federal law should override state law, so unlawful immigrants should not be considered qualified to receive in-state tuition.
According to The National Immigration Law Center, which advocates for low-income immigrants, at least 22 states have adopted “tuition equity” policies like Virginia’s, and these policies do not contradict federal law.
“Contrary to the claims of immigration restrictionists, federal law does not prohibit states from providing in-state tuition to undocumented immigrants,” the NILC’s website reads. “Tuition equity measures are fully consistent with federal law.”
To support its argument, the NILC cites section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which allows states to provide higher education benefits to undocumented immigrants if the same benefits are provided to U.S. citizens in the same circumstance, or in this case, meet the same schooling qualifications outlined in state law. According to the NILC, state laws that allow students to meet the standards by attending Virginia high schools, regardless of immigration status, comply with federal law.
An amendment to section 505 was introduced to the House Dec. 18 by a Texas representative to prohibit illegal immigrants from attaining education benefits, including tuition. The amendment has not yet passed the House, and it also needs to pass the Senate and be signed by the president before becoming a law.
Attorney General-elect Jay Jones (D) criticized the lawsuit and the Miyares administration’s response in a post on X. Jones will assume office Jan. 17, as will Gov.-elect Abigail Spanberger (D).
“The Trump administration’s lawsuit is an attack on our students and a deliberate attempt to beat the clock to prevent a new administration from defending them,” Jones posted. “This is the exact kind of federal overreach Virginians rejected in November.”
According to Jones’ X post, his team is currently reviewing legal options for fighting the lawsuit.
Various advocacy groups have also pushed back against the lawsuit and Miyares’ agreement, including the Legal Aid Justice Center, the ACLU of Virginia and the Dream Project with their emergency motion Dec. 31.
“These are Virginia students who grew up in the Commonwealth, graduated from our high schools, contribute to our communities and made life-altering decisions for their futures relying on a state law that has existed for years,” said Rohmah Javed, director of the Immigrant Justice Program at the Legal Aid Justice Center. “They deserve someone to stand up and fight for them.”
According to the joint motion, the lawsuit is attempting to overthrow the Virginia Dream Act — which allows illegal immigrants to receive in-state tuition — without a present party to represent the interest of students. Effectively, the lawsuit faces no real adversary, because the plaintiff and the defendant — the Justice Department and Miyares — are in agreement. According to the joint motion, this challenges the integrity of the judicial process.
“The [U.S.] and Virginia intend to subvert the judicial process and deprive those most impacted by the law’s intended rescission — and the democratically elected legislators who have year after year chosen to leave Virginia’s in-state tuition laws in place — of a full adjudication of constitutionality,” the motion reads.
The joint motion also argues that Miyares “abdicated his duties” to enter a “collusive agreement,” thereby abandoning his obligation to Virginia students. Moving forward, the joint motion requests an intervention so that the Court may hear from affected students before approving or enforcing anything that could determine the students’ futures.
The case is now awaiting a judge’s decision to allow the agreement or reject it.
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