Virginia Attorney General Jason Miyares
The move comes as part of a broader Trump administration effort to challenge state policies viewed as providing benefits to undocumented immigrants, with Attorney General Pam Bondi filing suit against Virginia just days ago.
Miyares entered a joint motion with the Department of Justice agreeing that federal law preempts Virginia's in-state tuition policy. On social media, he defended the decision, writing that "rewarding non-citizens with the privilege of in-state tuition is wrong and only further incentivizes illegal immigration."
Attorney General-elect Jay Jones, a Democrat set to take office within weeks, sharply criticized the timing and substance of Miyares' action, calling it "an attack on our students" and "a deliberate attempt to beat the clock to prevent a new administration from defending them."
Jones said he is "reviewing all legal options available to the Commonwealth" to protect the policy.
The financial implications of the policy are substantial. At Virginia Commonwealth University, for example, in-state students pay approximately $32,000 annually, while out-of-state students face costs exceeding $55,000 — a difference of more than $23,000 per year.
The 2020 law, signed by then-Democratic Gov. Ralph Northam, allows students who are undocumented but meet state residency requirements to access in-state tuition rates regardless of immigration status. At the time, the Virginia Interfaith Center for Public Policy celebrated it as "historic legislation."
Democratic Del. Rodney Willett, who voted for the measure, defended the policy's educational mission.
"We need to educate people here in Virginia," Willett said. "This is part of that education process, we provide K-12 schooling for folks who come here as immigrants, and it's absolutely the right thing to do."
Republican State Sen. Glen Sturtevant took the opposing view, supporting Miyares' decision. "I'm glad that the Department of Justice and Attorney General Miyares were able to reach this proposed settlement that is no longer going to allow Virginia taxpayers to subsidize higher education for illegal aliens who shouldn't be here in the first place," he said.
Virginia is one of approximately two dozen states that allow undocumented students to qualify for in-state tuition under certain conditions, typically requiring graduation from an in-state high school and meeting residency requirements. The policies emerged following the 2001 passage of Texas's groundbreaking law and have since spread to states including California, New York, Florida, and Illinois.
The Trump administration lawsuit alleges that Virginia's policy "unconstitutionally discriminates against U.S. citizens who are not afforded the same reduced tuition rates, scholarships or subsidies, create incentives for illegal immigration, and reward illegal immigrants with benefits that U.S. citizens are not eligible for."
The legal challenge centers on federal law that generally prohibits states from providing benefits based on residency to undocumented immigrants that are not also available to U.S. citizens. Supporters of in-state tuition policies argue they don't violate federal law because U.S. citizens from other states can also qualify for in-state rates by meeting the same residency requirements.
The debate reflects a broader national tension over immigration policy and the treatment of undocumented students, many of whom came to the United States as children and have grown up in American communities.
The case now awaits judicial review, with a judge required to accept the joint motion between Miyares and the DOJ. Meanwhile, the Legal Aid Justice Center and the ACLU of Virginia have filed an emergency motion challenging the federal lawsuit, ensuring the legal battle will continue into the new year.
The outcome could have implications not only for Virginia's approximately 1,500 undocumented students who benefit from in-state tuition annually, but also for similar policies in other states that may face federal challenges under the new Trump administration.
