Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance
committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports
if they are used for other purposes.
Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (
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HB 853
SHORT TITLE Repealing College Admission for Immigrants
ANALYST Williams
APPROPRIATION (dollars in thousands)
or Non-Rec
See Text
General Fund ----
higher education
funding formula
See Text
General Fund – State
Student Financial Aid
($220.0 to $600.0) Recurring; escalates
over time; see text
Lottery Scholarship
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates Senate Bill 749
LFC Files
Responses Received From
Higher Education Department (HED)
Synopsis of Bill
The bill repeals Section 21-1-4.6 NMSA 1976 or Laws of 2005, Chapter 348.
21-1-4.6. Nondiscrimination policy for admission to any public post-secondary educational insti-
tution; nondiscrimination in eligibility for education benefits.
A. A public post-secondary educational institution shall not deny admission to a student on
account of the student's immigration status.
B. Any tuition rate or state-funded financial aid that is granted to residents of New Mexico
shall also be granted on the same terms to all persons, regardless of immigration status, who have
attended a secondary educational institution in New Mexico for at least one year and who have
either graduated from a New Mexico high school or received a general educational development
House Bill 853 – Page
certificate in New Mexico.
According to the fiscal impact report on Senate Bill 582 from the 2005 legislative session:
“Eligible Groups. There are several groups which would meet the qualification specified in
Section B including:
Students already attending post-secondary institutions - estimated to be between 50 and
250 at state universities. The number of these students at community colleges is not
clear, but is thought to be considerably higher.
Students receiving high school diplomas in New Mexico and meeting the high school at-
tendance test, and
Individuals receiving a GED in New Mexico and meeting the high school attendance test.
There is a significant lack of data on number of undocumented individuals living in New Mex-
ico; INS estimates do not include breakdown of age cohorts of children. In Estimates of the Un-
authorized Immigrant Population Residing in the United States: 1990 to 2000, the Immigration
and Naturalization Service (INS) estimates 39,000 people living in New Mexico as unauthorized
residents in 2000, nearly double the amount of 20,000 in the state in 1990. NCSL estimates ap-
proximately 50,000 to 60,000 undocumented aliens graduate from high schools in the United
States annually; state-by-state estimates are not available. Data on the number of undocumented
aliens in public schools and post-secondary institutions in New Mexico is not compiled and is
not available. Data on the number of undocumented aliens in Adult Basic Education or GED
programs is not compiled and is not available. The SDE Data Collection and Reporting Unit in
its High School Graduates by Ethnicity indicates 8,116 Hispanic children graduated from New
Mexico public high schools in the 2003-2004 school year. Using the methodology utilized for a
fiscal analysis of similar legislation in Texas, one might estimate 10 percent of the 8,116 His-
panic high school students, or 812 high school graduates, might be eligible. This represents just
4.5 percent of total New Mexico high school graduates. According to the SDE Accountability
Report, only 69 percent of New Mexico high school graduates apply to post-secondary institu-
tions. This analysis assumes these students would attend universities and community colleges in
the same proportion, resulting in 560 high school graduates eligible annually. SDE reports 377
Spanish GEDs were administered in 2004. Clearly, Spanish GEDs would be requested by both
citizens and non-citizens. New Mexico citizens might prefer taking the examination in Spanish,
while some undocumented aliens may prefer taking the examination in English. However, as-
suming 50 percent of the Spanish GEDs were awarded to undocumented residents and using
SDE data reflecting 59 percent of all GEDs intend to continue to a post-secondary institution, an
estimated 111 additional individuals might be eligible each year.
Fiscal Cost. An informal survey of university registrars indicates if documentation such as a
high school diploma or a GED is issued by the state of New Mexico, then acceptance at in-state
tuition rates is occurring in practice. In previous years, CHE reported inconsistent practices by
public post-secondary institutions across the state with respect to admissions policies and as-
sessment of resident tuition. As a result of these practices, the net impact from a surge in eligi-
ble students on the general fund is not significantly large. In this case, the effective incremental
cost of the amended bill stems from extending eligibility to the lottery scholarship program.
House Bill 853 – Page
Further, in November 2004, the CHE revised its residency regulation (5.7.18 NMAC). One of
the changes approved was to delete the former section D. which defined “Non-U.S.
Citizen”. The language that was deleted from the regulation read as follows: ““Non-U.S. citi-
zen” means persons and their children who are not citizens of the United States shall be classi-
fied as residents or non-residents on the same basis as citizens of the United States if they are
lawfully in the United States and have obtained permanent resident status from the Immigration
and Naturalization Service (INS). Non-citizens on other visas (e.g. diplomatic student, visitors
or visiting scholars) shall be classified as nonresidents. Service in the armed forces of the United
States shall entitle the noncitizen to be classified as nonresident or resident on the same basis as a
citizen.” The impact of this change was to provide institutions with broader discretion in deter-
mining the residency status of prospective students according to the overall residency policy.
(In the absence of these practices, in theory the legislation could increase General Fund appro-
priations by roughly $5.8 million in FY08 due to the higher education formula funding which
pays for each enrolled student. As each successive class enters the higher education system,
costs would have increased exponentially. Formula-driven FY11 general fund costs would have
been estimated at roughly $19.3 million.)
The cost to the Lottery Tuition Scholarship Fund is estimated from $220 to $600 thousand in the
first full year of implementation, since students enrolling in Fall 2005 would be eligible to re-
ceive the lottery scholarship. The associated cost to the lottery tuition scholarship fund could
grow to approximately $3.7 million in FY09. While data on the numbers of these students is not
available, this projection uses the methodology and data discussed above and is intended to pro-
vide illustrative scenarios.
Finally, General Fund appropriations support other state student financial aid programs. This
legislation would result in additional claims for state student financial aid and/or the need to sup-
plement current funding levels over time.
This analysis assumes the CHE would not interpret the legislation as a non-resident tuition
waiver. There is no assumption for increases in the number of undocumented residents over
time, i.e. no significant increases in undocumented immigration to the state for any reason. This
analysis assumes individuals moving to New Mexico to receive GEDs would not be eligible
unless they had attended a New Mexico high school for one year. This assumption is critical to
the cost impacts.”
According to NCSL, non-documented immigrants or illegal aliens are defined as non-U.S. citi-
zens who have entered the United States without proper documentation and without complying
with U.S. Immigration and Natural Service (INS) procedures.
Federal laws entitle undocumented immigrants, regardless of status, access to public schools in
the United States, but prohibit granting financial aid and in-state tuition at post-secondary educa-
tional institutions. In the 1980’s, the Attorney General of the State of New Mexico which was
interpreted that these students might be assessed in-state tuition. The Commission on Higher
Education (CHE) requested an opinion from the Attorney General regarding status of federal
regulation and in-state tuition in 2001. In 2003, the Attorney General sent correspondence to the
Commission on Higher Education on its authority to change regulations on the issue.
House Bill 853 – Page
The current statutory provision makes higher education more affordable and accessible for im-
migrant students meeting residency requirements as well as offer associated economic opportuni-
ties. Due to their immigration status, these students do not qualify for most financial aid. The
bill could lower drop-out rates. Further, some institutions already admit these students at in-state
tuition rates, and this legislation would clarify this practice at the state’s higher education institu-
tions and would treat all students in the state equally regardless of their immigration status.
Statutes to provide in-state tuition rates have enacted in several states, including Texas, Califor-
nia, Utah New York, Illinois, Oklahoma and Kansas. Notably Texas expanded eligibility to state
student financial aid programs as well. Legislation to restrict access to higher education to these
students has been introduced in Alaska, Arizona, North Carolina and Virginia
According to the Chronicle of Higher Education in December 2005, out-of-state students attend-
ing California public colleges filed a lawsuit to challenge California’s law to allow undocu-
mented students to pay in-state tuition. The lawsuit seeks an estimated $600 million dollars in
damages from the state’s three public college systems. The lawsuit represents 60,000 students
who have attended University of California, California State University and California commu-
nity colleges since 2002. The basis for the suit is the equal protection clause of the 14
ment of the US Constitution as well as 1996 federal immigration law which states immigrants
who are not legally in the United states cannot be eligible, based on their residence in a state, for
“any postsecondary benefit unless a citizen or national of the United States is eligible for such a
California officials indicate the program does not violate federal law because it bases eligibility
on high school attendance and graduation, not residence in the state. Interestingly, University of
California noted 70 percent of the 1,300 UC students under the program are US citizens, includ-
ing those students whose families move out of California just after the student graduates from
high school and students whose families live out of state, but who attend boarding schools in
HED notes:
“In a state like New Mexico, students who are undocumented and qualify for admission, in-state
tuition rates, and state-funded financial aid as per Section 21-1-4.6 NMSA1978, have lived in
the United States and New Mexico for a number of years. The students' parents have worked
and paid taxes to the state of NM for years. In addition, many students have gone through the
New Mexico educational system for most or the majority of their schooling. These individuals
will continue to live in NM and in the U.S. By educating these students, you are preparing them
to be contributing members of our society. “