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DETERMINATION OF RESIDENCE STATUS FOR TUITION PURPOSES. Priscilla Lozano Office of General Counsel Presented with Budge Mabry Texas Medical &Dental Schools Application Service Deana Williams UT Austin Graduate & International Admissions October 5, 2005(Modified Jan. 2006)

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DETERMINATION OF RESIDENCE STATUS FOR TUITION PURPOSES

Priscilla Lozano

Office of General Counsel

Presented with

Budge Mabry

Texas Medical &Dental Schools Application Service

Deana Williams

UT Austin Graduate & International Admissions

October 5, 2005(Modified Jan. 2006)

* Texas Education Code

** Texas Higher Education Coordinating Board Rules and Regulations Determining Residence Status


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Developments in the Law

  • SB 1528, 79th Legislative Session

    • Fall, 2006 – new law applies (SB 1528, Section 12(b)

    • January 1, 2006 - THECB required to adopt rules

  • Texas Higher Education Coordinating Board Rules and Regulations

    • October, 2005 - posted for comment

    • October 27, 2005 – proposed for CB adoption


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Highlights of New Law

  • Major redrafting of the General Rules, although basis for claim of residency remain:

    • Self: Non-dependant person is domiciliary of Texas

    • Parent: Dependant’s Parent is domiciliary of Texas

    • High School Graduation: HB 1403(modified)


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Highlights of New Law (cont.)

  • Texas residency eligibility still requires domicile and 12 months physical presence; however, establishment of a domicile is presumed if certain steps have been taken

  • Documentation

    • Documentation to establish residency is specifically limited by THECB rules

      • Core Residency Questions only


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Highlights of New Law (cont.)

  • Continuing Resident Status

    • Once classified as a resident, status follows to other Texas institutions unless break in enrollment

  • Non-resident presumption removed from reclassification rules


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Key Definitions

  • “Domicile” – a person’s principal, permanent residence to which the person intends to return after any temporary absence. §54.0501(3)*

    vs.

  • “Residence” – a person’s home or other dwelling place. §54.0501(6)*


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Key Definitions (cont.)

  • “Establishment of a domicile” – a person has established a domicile in Texas if he/she has met the conditions shown in 21.730(d). §21.728(7)**

  • “Maintenance of a residence” – to physically reside in a location unless temporarily absence in accordance with definition 24. §21.728(13)**


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Key Definitions (cont.)

  • “Temporary absence” – absence from the State of Texas with the intention to return, generally for a period of less than five years. §21.728(24)**

  • “Parent” - a natural or adoptive parent, managing or possessory conservator, or legal guardian of a person. §54.0501(5)*


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Key Definitions (cont.)

  • “Dependant” - a person who:

    • is less than 18 years of age and has not been emancipated by marriage or court order; or

    • as provided by coordinating board rule, is eligible to be claimed as a dependent of a parent of the person for purposes of determining the parent's income tax liability under the Internal Revenue Code of 1986. §54.0501(2)*


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Basis For Claim Of Resident Status - §54.052*

  • Dependent’s parent domiciled in Texas (§54.052a(2))*

    • established a domicile in this state not later than one year before the census date of the academic term in which the dependent is enrolled in an institution of higher education; and

    • maintained that domicile continuously for the year preceding that census date


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Basis For Claim Of Resident Status - §54.052*(cont.)

  • Non-dependant person is domiciled in Texas (§54.052a(1))*

    • established a domicile in this state not later than one year before the census date of the academic term in which enrolled in an institution of higher education; and

    • maintained that domicile continuously for the year preceding that census date


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Domicile Presumed to be Established in Texas §21. 730(d).**

  • Gainful employment

  • Ownership of real property

  • Ownership of business

  • Marriage to domiciliary of Texas


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HB 1403 (modified)

(§54.052a(3))

graduated from a public or private high school in this state or received the equivalent of a high school diploma in this state; and

maintained a residence continuously in this state for

the three years preceding the date of graduation or receipt of the diploma equivalent, as applicable; and

the year preceding the census date of the academic term in which the person is enrolled in an institution of higher education.

§54.053(3)(B)

HB 1403

(j) Notwithstanding any other provision of this subchapter, an individual shall be classified as a Texas resident until the individual establishes a residence outside this state if the individual resided with the individual's parent, guardian, or conservator while attending a public or private high school in this state and:

graduated from a public or private high school or received the equivalent of a high school diploma in this state;

resided in this state for at least three years as of the date the person graduated from high school or received the equivalent of a high school diploma;

registers as an entering student in an institution of higher education not earlier than the 2001 fall semester; and

provides to the institution an affidavit stating that the individual will file an application to become a permanent resident at the earliest opportunity the individual is eligible to do so.

Basis For Claim Of Resident Status - §54.052* (cont.)


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Documentation

  • Required statement of the dates and length of time of residence and that the purpose of residence was to establish a domicile. §54.053*

  • Required affidavit if the person is not a citizen or permanent resident and seeks residency under §54.052(a)(3)*

  • An institution of higher education may not require a person to provide evidence of resident status that is not required by coordinating board rule. §54.075(b)*


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Documentation (cont.)

  • Core Residency Questions §21.731(a)**

  • Documentation to support core questions (as indicated in Chart IV) may be requested §21.731(b).**

  • Affidavit of non-US citizen non-Permanent Resident who establishes claim under §21.730(a)(1)** (amended HB 1406 provision). §21.730(c)**


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Continuing Residence Status -§54.054*

  • Once classified Texas resident always Texas resident, regardless of whether the student changes institutions, unless:

    • the person does not enroll for two (2) or more consecutive regular semesters, §54.054(c)*;

    • the person is reclassified based on additional or changed information;

    • the person is erroneously classified


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Reclassification

  • A person classified as a non-resident may request reconsideration and reclassification §54.055*

  • A person is required to provide the institution with any additional or changed information which may affect his or her current resident status §54.055*(21.733(b)**)


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Errors In Classification

  • Erroneously classified as resident because of omission or falsification §54.057*:

    • person failed to provide information that reasonable person would know is relevant to an accurate classification by the institution

    • person falsified information


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Errors In Classification (cont.)

  • Consequence of erroneously classification because of omission or falsification

    • Student may be required to pay difference for each semester

    • Payment due not later than the 30th day after notification

    • Student not entitled to diploma or certificate (if applicable) or official transcript that includes credit while erroneously classified until paid in full


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Errors In Classification (cont.)

  • Required notice by institution when omission/falsification

    • 1st day of following semester provide notification that difference between resident and nonresident tuition must be paid

  • Consequence if not omission or falsification

    • Classified as non-resident next semester

  • If erroneous non-resident classification

    • Institution shall refund out of state portion of tuition for each semester


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Sample Case #1

  • Dependent

    • father domiciliary of Texas; mother is not

    • student lives with mother

    • father claims as dependent on federal income tax return

  • Classification

    • Resident


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Sample Case #2

  • Dependent

    • father domiciliary of Texas; mother is not

    • student lives with mother

    • father is eligible to claim (providing at least 50% of support) but mother has right to claim under divorce decree

  • Classification

    • Resident

  • Discussion - eligibility to claim vs. actually claiming

  • Review of Core Questions


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Sample Case #3

  • Graduate of Texas High School

    • maintained a residence in Texas for the 3 years preceding graduation

    • lived in Texas for year preceding census date

    • lived with grandmother

  • Classification

    • Resident

  • Discussion

    • no longer required to live with parent or legal guardian


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Sample Case #4

  • Graduate of Texas High School

    • maintained a residence in Texas for the 3 years preceding graduation

    • lived in Texas for year preceding census date

    • in Texas on an F-1 visa

  • Classification

    • Resident

  • Discussion

    • Visa status is irrelevant for residency determination (for §54.052(a)(3)* portion of statue only.

    • Affidavit

    • change scenario - student returned country of origin yr preceding census date. Change in classification?? Would not be eligible because did not reside in Tx 1 year before census date.


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Sample Case #5

  • Non-dependant foreign national

    • Visa allows domicile

    • owns property in Texas - purchased 5 years ago

    • lived in Texas for year preceding census date

  • Classification

    • Resident


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Sample Case #5(cont.)

  • Discussion

    • Eligible to establish a domicile (see: CB Chart 1)

    • Presumed to have established a domicile

      • During the last 12 months has owned property

    • Has maintained physical residence during 12 months preceding enrollment


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Sample Case #6

  • Non-dependant foreign national

    • Applied for visa permitting permanent residency 1 year prior to enrollment

    • lived in Texas for year preceding census date

  • Classification

    • Resident

  • Discussion

    • Must verify that individual has applied for adjustment of status to PR (I-485). A fee filing receipt or notice of action is required.


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Sample Case #7

  • Non-dependant

    • Born in Texas

    • Graduated from high school

    • Moved out of state 2 years prior to census date

    • Worked in Texas for year prior to move


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Sample Case #7(cont.)

  • Discussion

    • Presumed to have established a domicile

      • At least 12 months prior was gainfully employed for a year

    • Has not maintained physical residence during 12 months preceding enrollment

  • Classification

    • Non-resident unless demonstrate that absence was temporary


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Sample Case #8

  • Non-dependant

    • Born in Texas

    • Graduated from high school

    • Moved out of state 2 years prior to census date

    • Owns property in Texas

    • Explains that Texas is principal, permanent residence to which he/she plans to return


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Sample Case #8(cont.)

  • Discussion

    • Presumed to have established a domicile

      • During the last 12 months has owned property

    • Has not maintained physical residence during 12 months preceding enrollment

    • Temporarily absent from Texas

  • Classification

    • Resident


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Sample Case #9

  • Married

    • Married Texas resident 6 months before census date

    • Lived in Texas for year preceding census date

    • Had no basis for claiming residency other than marriage (i.e. no employment, does not own ppty)

  • Classification

    • Non-Resident

  • Discussion

    • Did not establish a domicile 12 months before census date because was not married full 12 months prior to census date.


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Sample Case #10

  • Dependant

    • Parent military legal residence (DD 2058) is not Texas

    • Parent stationed in Texas

  • Classification

    • Non-Resident

  • Discussion

    • Military Waiver eligible


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Sample Case #11

  • Classified as non-resident

    • Enrolls and attends year one

    • 12 months prior to next year’s census date establishes domicile (see 21.730(d)**)

  • Applies for reclassification

    • Produces requested documentation

      • Proof from Chart IV**

  • Classification

    • Resident

  • Discussion

    • Presumption of non-resident status continuing while enrolled removed from rules


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Appeals

  • Discussion of appeals processes at institutions

  • CB appeal for members of same family eliminated


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Resident Rate for Non-residents

  • Technology/Science development and discovery agreements, ie. Sandia §65.45

    • Person employed by the entity with whom UT enters an agreement for funding the discovery, development, and commercialization of new products, technology, and scientific information, including an agreement to manage a national laboratory engaged in any of those endeavors, or the person’s spouse or child, may pay resident tuition and fees in UT System institutions.

    • Effective September 1, 2005


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Residence Determination Official §21.736**

  • Each institution required to designate an employee

  • Employee must attend one CB training regarding Residency Rules each fiscal year


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