Section 02. Determining eligibility for in-state tuition.
A. The student bears the burden of establishing, by clear and convincing evidence, that the student (i) is a national or an eligible alien and (ii) has, for at least a one-year period prior to the claimed entitlement, established and maintained his domicile in the Commonwealth of Virginia.
The institution shall first determine from the information furnished by the applicant whether the applicant is a national or an alien. If the applicant is a national, the institution shall continue the domicile analysis. If the applicant is an alien, the institution will determine whether the applicant is an eligible alien or an ineligible alien. If the applicant is an eligible alien, then the institution shall continue the domicile analysis. Notwithstanding anything contained in these guidelines to the contrary, if the applicant is neither a national nor an eligible alien, the applicant is not eligible for further domicile consideration under these guidelines.
1. The State Council of Higher Education for Virginia maintains guidance documents that provide information on forms, definitions, and nonimmigrant categories, including classification as eligible or ineligible alien.
2. It is the applicant’s responsibility to provide clear and convincing evidence of their current legal status. Failure to provide such evidence results in classification as an out-of-state student.
B. If the applicant has the legal ability to establish domicile, then the institution determines whether the applicant is a dependent or independent student, emancipated or unemancipated minor.
C. The institution shall then determine, on the basis of the information furnished by the applicant, whether domicile has been clearly and convincingly established in Virginia for the requisite one-year period. If the date of the alleged entitlement is, for example, September 1, 2008, then domicile must have been established in Virginia no later than September 1, 2007, and continued 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 aged 18 or over may seek to demonstrate 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, (ii) retired military personnel residing in the Commonwealth at the time of their retirement, and (iii) the dependent spouses or children of persons described under (i) or (ii) of this subsection.
Section 03. Domicile: residence requirement.
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.
3. 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.
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 having Virginia domiciliary intent or otherwise 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.
Section 04. Domicile: intent requirement.
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. For purposes of determining the status of incarcerated minors, the Commonwealth of Virginia is not considered to be their legal guardian.
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 domicile 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. Failure to provide “clear and convincing” evidence fails the required standard and will result in the student being classified as out-of-state.
E. Section 23.1-502 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. In addition to considering the statutorily mandated factors, institutions may consider other relevant factors, such as voting in state and local elections, to determine whether the student has established Virginia domicile by clear and convincing evidence. 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 Virginia tax return is evidence that one is not a Virginia domiciliary. 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. 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 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.
b. 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 not determinative since the individual may forget to vote, choose not to, or in the case of certain aliens, may not be entitled to vote.
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 and documentation 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. Enrollment in but noncompletion of an educational program designed specifically for employment in Virginia is not sufficient evidence that domicile has been established.
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 or the Leave and Earnings Statement as evidence of Virginia domicile.
10. Accepting a written offer of employment with a Virginia employer.
a. Accepting a written offer of 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.
Section 05. Residence for educational purposes.
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 resides in Virginia primarily for educational purposes 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 student’s educational enrollment records when determining if the student resides in 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.
Section 06. Extended Eligibility for in-state tuition rates.
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-à-vis the above mentioned person at the time of abandonment.
Section 07. Unemancipated minors.
A. An unemancipated minor automatically takes the domicile of his parents.
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 for purposes other than a vacation or visit;
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.
Section 08. Dependent children.
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 does not have 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 dependent child may be either:
1. The domicile of the parent with whom he resides for purposes other than a vacation or visit;
2. The domicile of the parent who claims the child 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.
The presumption is that the student has the domicile of the parent described in either Section 08 B 2 or 3. For example, if a child lives with his mother, but the father, who is a Virginia domiciliary, claims the child as a dependent on his federal and Virginia income tax returns, the child 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 or spouse, that is, the student receives substantial financial support from parents or spouse or is listed on a parent'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 he meets the definition of a dependent student.
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 or legal 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 as of the term that begins 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 Section 04 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.
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 subsections A and B of this section).
b. The institution should consider the requirements of the military provision (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.
4. If the military family member is unable to demonstrate eligibility via domicile, they may be considered under special military provisions found in Part III.
Section 09. Independent students.
A. An independent student is one whose parents have surrendered the right to his care (such as providing insurance coverage and transportation), 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 Section 08 C 1.
C. Unless the student rebuts the presumption of dependency through one of the seven factors mentioned in Section 08 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.
Section 10. Emancipated minors.
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 and court order if needed to substantiate the claimed emancipation.
Section 11. Married persons.
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. A 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. An institution should only apply the requirements of the military provision (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.
2. Spouses of military members do not have to be employed to establish domicile in Virginia. All individual ties to Virginia should be considered.
a. As with anyone else, the strength of the nonmilitary spouse’s ties to Virginia should withstand scrutiny.
b. In addition to the factors listed in 8 VAC 40-120-40 E, the institution should consider the duration of residence in Virginia and the nonmilitary spouse's domiciliary history. Evidence that the nonmilitary spouse has accompanied the military spouse on each tour of duty outside Virginia and taken steps to establish domicile in other states may show that the nonmilitary spouse has not established a Virginia domicile independent of the military spouse.
3. 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. Since the dependent spouse is standing in the shoes of the military member, there is no one-year domicile requirement.
4. If the military family member is unable to demonstrate eligibility via domicile, they may be considered under special military provisions found in Part III.
Section 12. Aliens.
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 an alien claims Virginia domicile, the alien bears the burden of presenting clear and convincing evidence to the institution establishing that the alien is an eligible alien. If the alien is unable to present such evidence, the alien shall be presumed to be an ineligible alien.
B. If an alien applicant establishes that he is an eligible alien, the institution shall then review all relevant factors to determine if the alien applicant did in fact establish domicile for the requisite one-year period.
C. In reviewing the domiciliary intent factors, the institution should keep in mind that there may be factors that are inapplicable to aliens by operation of law. Examples include the following:
1. Aliens cannot register to vote.
2. Salaries paid to some non-U.S. citizens are exempt from federal and state taxation.
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 eligible alien may claim eligibility for in-state tuition through the Virginia domicile of the student's parent, like any other student. An eligible 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.
1. 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.
2. 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.
F. Alien students with a pending status change.
An ineligible alien may become an eligible alien if (i) a petition or application to change status to eligible alien status has been approved or (ii) an application for adjustment of status for permanent residence status has been filed. Domicile cannot be established any earlier than the date of the respective U.S. Citizenship and Immigration Services official notice used for verification of (i) or (ii).
1. If an ineligible alien has filed or has become a beneficiary of a petition to change from one nonimmigrant status to another such that the student will, if and when approved, become an eligible alien, the student will continue to be ineligible, despite the pending petition or application. Subsequent to the petition or application being approved, the student may seek reclassification for in-state tuition by presenting clear and convincing evidence that he is, at that time, an eligible alien and has established Virginia domicile for at least one full year.
2. An ineligible alien who has filed an adjustment of status application for permanent residence may seek reclassification for in-state tuition by presenting a receipt notice for his pending adjustment of status application and demonstrating that Virginia domicile has been established for at least one full year.
Section 13. Reclassification.
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 alleged 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 term has a grace period that lasts until the end of that term.
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.
Section 14. Falsification of information.
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 Section 25 and Section 26, must be followed to dismiss the student and, if the student chooses, to appeal such action.
Section 15. Student responsibility to register under proper classification; responsibility for supplying information.
A. It is the student's responsibility to make application under the proper domicile classification or other in-state tuition provision.
B. It is the student's obligation, prior to or at the time of registration, to raise the question with the proper 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 by the institution’s deadline. Failure to comply with such requests may result in one of the following consequences for the term in question and until eligibility is confirmed:
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 canceling enrollment.
Section 16. Limitation on in-state benefit.
A. After August 1, 2006, for first-time freshman students who enroll at a public, baccalaureate degree-granting, institution of higher education in Virginia and who have established Virginia domicile, the entitlement to in-state tuition shall be modified to require the assessment of a surcharge for semesters exceeding 125 percent of degree requirements for a baccalaureate program.
B. Notice to students.
1. For degree-seeking students, all courses taken for credit are included in the calculation, whether they specifically satisfy degree requirements or not, subject to the following conditions.
a. When determining which credit hours to include in the calculation, the institution shall implement the principles used to evaluate Satisfactory Academic Progress quantitative standards in compliance with Section 668 of the Federal Compilation of Student Financial Aid Regulations;
b. Excluded credits. In calculating the 125 percent credit hour threshold, the following courses and credit hours shall be excluded:
(1) Remedial courses;
(2) Transfer credits from another Virginia public college or university that do not meet degree requirements for general education courses or the student's chosen program of study;
(3) Transfer credits from other than a Virginia public college or university;
(4) Advanced placement or international baccalaureate credits that were obtained while in high school or another secondary school program; and
(5) Dual enrollment, college-level credits obtained by the student prior to receiving a high school diploma.
2. The surcharge shall be assessed for each term that the student continues to be enrolled after such student has completed 125 percent of the credit hours needed to satisfy the degree requirements for a specified undergraduate program.
a. The surcharge is applicable for all enrolled courses beginning with the term after the credit hour threshold has been reached.
b. If the student is in a 120-hour program and has completed 145 credit hours, there remains just five hours before meeting the credit hour threshold of 150 credit hours. However, if the student enrolls in more than five credit hours, the entire term is still charged at the standard in-state tuition rate because the student had not met the threshold prior to that term.
1. The institution shall notify students of the 125 percent restriction on in-state tuition no later than the initial enrollment into a degree program. Notification may be in the college catalog, institution website, or within the in-state tuition notification letter and shall include a general description of the restriction.
2. In addition, the institution shall provide direct notification to all students during their senior year. Notification must be made directly to the student and may include electronic mail or regular mail and must include a description of the restriction, credits that are excluded, and the appeals process.
C. Waiver of the surcharge. Waivers involving circumstances not otherwise outlined in these guidelines shall be reviewed by State Council of Higher Education for Virginia staff. The institution may waive the surcharge assessment for students who exceed the 125 percent credit hour threshold due to extenuating circumstances. The institution shall review all requests for waivers on a term-by-term basis. Waiver criteria that may be approved by the institution include:
1. Circumstances affecting student performance or completion of a term.
a. Long-term illness or disability occurring after initial matriculation,
b. Death or long-term disability of an immediate family member, person providing financial support, or dependent,
c. Involuntary loss of student employment resulting in withdrawal from a term,
d. Active or reserve service in the armed forces of the United States or other state or national military mobilization,
e. Other state or national emergency, and
f. Service in AmeriCorps or Peace Corps.
2. Academic program decisions requiring additional courses.
a. Double-majors. The credit hour threshold is calculated based on the minimum hours required in order to complete a declared double-major as recognized by the institution. The double-major must have been declared by no later than the academic year prior to the term in which the student exceeds the credit hour threshold.
b. Change of majors. Except in cases where the institution requires the change of major, this provision for a waiver is only applicable for a student’s initial change of major - multiple changes by the student are not grounds for a waiver – and the change of major must have been declared by no later than the academic year prior to the term in which the student exceeds the credit hour threshold.
c. Second degree. The credit hour threshold is calculated based on the number of credit hours required to complete the second degree program. Credit hours from the first degree program that do not apply to degree requirements or electives of the second degree are excluded from the calculation.