Is Arizona's Proposition 308, which gives in-state tuition to students without lawful immigration status who graduated from an Arizona high school, consistent with federal law?

Plain-English summary

Arizona voters passed Proposition 308 in 2022. It lets a student receive in-state tuition at any state university or community college if the student attended an Arizona high school for at least two years and graduated, regardless of immigration status. State Senator Flavio Bravo asked whether that conflicts with two federal statutes: 8 U.S.C. § 1621 (which bars certain noncitizens from "state or local public benefits") and 8 U.S.C. § 1623 (which restricts giving postsecondary benefits to undocumented students based on state residence).

Attorney General Mayes said Proposition 308 is consistent with both. On § 1621: that statute has an exception, subsection (d), that lets states opt out by passing a law that affirmatively makes the noncitizen group eligible. Proposition 308 is exactly such a law. It says, in A.R.S. § 15-1803(C), that "[p]ersons without lawful immigration status are eligible for in-state tuition." That's the express, affirmative statement § 1621(d) requires.

On § 1623: that statute only applies when eligibility is based on state residence. Arizona's tuition rule under § 15-1803 is not a residence test. It's an attendance-and-graduation test. A student who never lived in Arizona but went to high school there can qualify; a student who lived in Arizona all their life but never attended an Arizona high school cannot. Because residence is not the trigger, § 1623 isn't activated. The California Supreme Court reached the same conclusion about a similar California statute in Martinez v. Regents.

What this means for you

For undocumented students who attended Arizona high schools

If you attended a public or private Arizona high school (or a homeschool equivalent) for at least two years and graduated, you qualify for in-state tuition at any Arizona public university or community college, even without lawful immigration status. The AG's opinion confirms that Arizona's law is consistent with federal law on this point. Bring your high school transcript and proof of graduation when you apply for in-state tuition. The AG opinion isn't itself a court ruling, so litigation could still arise; check with your campus financial aid office or an immigration attorney if you have specific concerns.

For university and community college admissions and financial aid offices

Process Proposition 308 applications under the framework the AG endorsed. Eligibility is keyed to two factual showings: at least two years of attendance at an Arizona high school (or homeschool equivalent) and graduation from an Arizona high school or homeschool, or a high school equivalency diploma earned in Arizona. Don't use immigration status, residency duration, or domicile as gating criteria for tuition under § 15-1803. The AG specifically notes that residence is not what triggers eligibility under § 15-1803; some students who qualify will not even be Arizona residents.

For state legislators considering similar policies elsewhere

The opinion lays out the federal-law architecture cleanly. § 1621 is preemptable through an explicit state opt-in. § 1623 only restricts residence-based eligibility, so attendance-and-graduation criteria avoid it entirely. The AG's footnote 1 reserves the question of whether Congress had authority to enact §§ 1621 and 1623 in the first place; if you're advising on a future statute, you can structure to comply with these federal provisions while preserving the broader constitutional question.

For immigration attorneys advising students and families

Proposition 308 is a reliable basis for in-state tuition. The AG's opinion gives a clean argumentative foundation if a school or financial aid office balks. The reasoning also imports comfortably to financial aid that uses § 15-1803 eligibility as a gatekeeper. The opinion does not address eligibility for state-funded scholarships or grants beyond tuition, so for those, separate analysis is needed.

Common questions

Does Proposition 308 give in-state tuition to anyone who lives in Arizona, regardless of where they went to high school?

No. Proposition 308 only adds a path under § 15-1803. The path requires two years of Arizona high school attendance (or homeschool equivalent) and graduation in Arizona (or a high school equivalency diploma earned in Arizona). Arizona's main residency-based path is in § 15-1802, which requires one year of domicile and is unchanged.

If I have lawful immigration status, does Proposition 308 still apply to me?

Yes. § 15-1803 covers any student (other than a "nonimmigrant alien") who meets the attendance-and-graduation requirements. It is not limited to undocumented students. A U.S. citizen who attended an Arizona high school but lives in another state could qualify under this path.

Why isn't this preempted by federal immigration law?

Because Congress wrote two specific provisions and Arizona threads through both. § 1621(d) lets a state pass a law that explicitly extends a public benefit to noncitizens not lawfully present. Proposition 308 explicitly does that. § 1623 only restricts residence-based postsecondary benefits. § 15-1803 isn't residence-based; it's attendance-based.

The opinion mentions Martinez v. Regents. What is that?

Martinez is a 2010 California Supreme Court decision (241 P.3d 855) that upheld California's similar in-state tuition law against a § 1623 challenge. The court held that California's attendance-and-graduation criteria were not "based on residence" and so didn't trigger § 1623. The AG's opinion uses Martinez as a roadmap, since California's statute and Arizona's are structurally alike.

Is this opinion binding on courts?

No. AG opinions are persuasive authority. A court reviewing a challenge to Proposition 308 could agree with the AG's reasoning or could read the federal statutes differently. The opinion is best understood as the AG's commitment to defend Proposition 308 if litigation comes.

Does the opinion address financial aid beyond tuition?

No. Proposition 308 and § 15-1803 govern the tuition rate. The AG's opinion does not address eligibility for state grants, scholarships, or other postsecondary benefits, which would each have to be separately analyzed under § 1621 (whether they are "state or local public benefits") and § 1623 (whether they are residence-based).

Background and statutory framework

The federal statutes at issue come from the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). 8 U.S.C. § 1621 broadly bars certain noncitizens from "state or local public benefits," but subsection (d) creates a state opt-out: a state law enacted after August 22, 1996, that "affirmatively provides for such eligibility" can extend a benefit to a noncitizen who would otherwise be barred. 8 U.S.C. § 1623 narrowly prohibits states from offering a postsecondary education benefit "on the basis of residence" to a noncitizen not lawfully present, unless any U.S. citizen is also eligible without regard to residence.

Arizona's pre-Proposition 308 statute, A.R.S. § 15-1802, requires one year of domicile to qualify for in-state tuition. § 15-1802 has many specific exceptions (military, dependents of Arizona-domiciled parents, members of Indian tribes whose reservations cross state lines, etc.) Proposition 308 left § 15-1802 alone. Instead, it added § 15-1803, which gives a separate, attendance-based path. § 15-1803(B) requires two years of attendance at "any public or private high school option or homeschool equivalent" while "physically present in this state," and graduation while physically present in the state or a high school equivalency diploma earned in the state. § 15-1803(C) explicitly states that persons without lawful immigration status are eligible for in-state tuition under subsection (B).

Proposition 308 also amended § 1-502(I) to remove "postsecondary education" benefits from the list of state and local public benefits requiring documentation of lawful presence.

The AG's reasoning relies heavily on the structural distinction § 1623 draws between residence and other criteria. The Martinez court read § 1623 as carefully drafted to refer to residence specifically and not to any "surrogate" for residence. Attendance and graduation are not surrogates, the AG concludes, because they can be satisfied without residence and residence can be satisfied without them. § 15-1803 will sometimes give in-state tuition to someone who is not an Arizona resident (a student who attended an Arizona boarding school whose parents live elsewhere; a student who crosses the border daily under § 15-823(G)). And it will deny it to many actual Arizona residents who didn't attend an Arizona high school.

Citations

• 8 U.S.C. § 1621 (state and local public benefits restriction)
• 8 U.S.C. § 1621(a) (general bar)
• 8 U.S.C. § 1621(d) (state opt-out)
• 8 U.S.C. § 1623 (postsecondary education benefit restriction)
• 8 U.S.C. § 1623(a) (residence-based eligibility prohibited)
• 8 U.S.C. § 1641 (qualified alien definition cross-reference)
• A.R.S. § 1-502(I) (documentation of lawful presence list, amended)
• A.R.S. § 15-1802 (general in-state tuition rule, residency-based)
• A.R.S. § 15-1803 (attendance-based in-state tuition path)
• A.R.S. § 15-1803(B) (attendance and graduation requirements)
• A.R.S. § 15-1803(C) (explicit eligibility for persons without lawful immigration status)
• Kaider v. Hamos, 975 N.E.2d 667 (Ill App. Ct. 2012) (§ 1621(d) requires only positive expression of legislative intent)
• Martinez v. Regents of Univ. of Cal., 241 P.3d 855 (Cal. 2010) (similar California statute upheld against § 1623 challenge)

Source

• Landing page: https://www.azag.gov/opinions/i25-006-r25-011
• Original PDF: https://www.azag.gov/sites/default/files/2025-08/I25-006.pdf

Original opinion text

To:

The Honorable Flavio Bravo

State Senator

1700 W. Washington Street

Phoenix, Arizona 85007

Question Presented

The voters adopted Proposition 308 as a legislative referral. See S.C.R. 1044, 55th Leg., 1st Reg. Sess. (2021). Proposition 308 allows students to receive in-state tuition at any Arizona university or community college if they meet attendance and graduation requirements, whether or not they have lawful immigration status. See A.R.S. § 15-1803(B), (C). Is Proposition 308 consistent with federal law codified at 8 U.S.C. §§ 1621 and 1623?

Summary Answer

Yes. Proposition 308 is consistent with §§ 1621 and 1623.

Section 1621 prohibits certain noncitizens not lawfully present in the United States from being eligible for "any State or local public benefit" unless a state law enacted after August 22, 1996, "affirmatively provides for such eligibility." 8 U.S.C. § 1621(a), (d). Assuming that the prohibition in § 1621 applies, Proposition 308 is specifically exempted as a permissible law "affirmatively provid[ing]" benefit eligibility to noncitizens not lawfully present. 8 U.S.C. § 1621(d).

Proposition 308 is also consistent with 8 U.S.C. § 1623, which prohibits a noncitizen not lawfully present in the United States from being "eligible on the basis of residence within a State … for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit" in equal amount "without regard to whether the citizen or national is such a resident." That statute restricts eligibility for some benefits offered on the basis of state residence to a noncitizen who is not lawfully present unless certain conditions are met. It creates no restrictions if eligibility is conditioned not on state residence, but instead on other criteria. Because Proposition 308 confers no eligibility for a postsecondary education benefit on the basis of residence—and instead uses other criteria—it is consistent with § 1623.

Background

The voters adopted Proposition 308 at the November 8, 2022, general election. The proposition allowed Arizona students to be eligible for in-state tuition if they attended a high school or home school equivalent for two years in Arizona and graduated from it.

Proposition 308 amended A.R.S. § 1-502(I) to exclude "postsecondary education" benefits from the list of state or local public benefits requiring documentation "demonstrating lawful presence in the United States." See S.C.R. 1044 § 1. And it amended § 15-1803 to allow students who meet certain high school attendance and graduation requirements to be eligible for "in-state tuition at any university under the jurisdiction of the Arizona Board of Regents or at any community college," irrespective of whether they have lawful immigration status. See S.C.R. 1044 § 2. Eligibility for in-state tuition under § 15-1803 is conditioned not on residence, but on a student having attended an Arizona high school or a homeschool equivalent "while physically present in this state for at least two years" and having graduated from high school or a homeschool equivalent or obtained a high school equivalency diploma "in this state." Seeid.

Analysis

I. Proposition 308 is consistent with 8 U.S.C. § 1621.[1]

Section 1621 broadly prevents certain noncitizens from accessing some state or local public benefits. See 8 U.S.C. § 1621. States can deviate from that bar by enacting a law that "affirmatively provides for such eligibility" when a person not lawfully present "would otherwise be ineligible." See id. § 1621(d). Proposition 308 qualifies as a law affirmatively providing for benefit eligibility.

Section 1621 provides that "except as provided in subsections (b) and (d), an alien who is not—(1) a qualified alien (as defined in [8 U.S.C. 1641]), (2) a nonimmigrant under the Immigration and Nationality Act, or (3) an alien who is paroled into the United States under section 212(d)(5) of such Act for less than one year, is not eligible for any State or local public benefit." 8 U.S.C. § 1621(a) (emphasis added). In other words, subsection (d) is an exception to the broader prohibition in § 1621 on certain noncitizens not lawfully present accessing some state and local public benefits (as that law defines them).

The exception specifically contemplates that states may pass laws like Proposition 308. "A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility." 8 U.S.C. § 1621(d).

Proposition 308 affirmatively provides eligibility to individuals not lawfully present whom federal law might have otherwise barred. In a section titled "Alien in-state student status; nonresident tuition exemption," it provides that "[p]ersons without lawful immigration status are eligible for in-state tuition pursuant to subsection B of this section." A.R.S. § 15-1803(C). And it exempts "postsecondary education" from the list of "state or local public benefits" that require documentation "demonstrating lawful presence in the United States." Id. § 1-502(I). That is enough to qualify for § 1621(d)'s exemption. See, e.g., Kaider v. Hamos, 975 N.E.2d 667, 674 ¶ 17 (Ill App. Ct. 2012) ("[S]ection 1621(d) is satisfied by any state law that conveys a positive expression of legislative intent to opt out of section 1621(a) by extending state or local benefits to unlawful aliens.").

II. Proposition 308 is consistent with 8 U.S.C. § 1623.

Section 1623 restricts the way that postsecondary education benefits can be offered to an individual not lawfully present in the United States. An individual who is not lawfully present cannot be eligible for such a benefit because she is a state resident unless a United States citizen or national is eligible for the same benefit irrespective of whether she is a state resident. Because Proposition 308 offers no benefit based on residence, § 1623(a) does not apply.

Section 1623(a) provides that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident." In other words, the statute "specifically refer[s] to residence—not some form of surrogate for residence—as the prohibited basis for granting unlawful aliens a postsecondary education benefit." Martinez v. Regents of Univ. of Cal., 241 P.3d 855, 864 (Cal. 2010).

Arizona's main statute on in-state tuition is A.R.S. § 15-1802, which requires a person to have been domiciled in Arizona for at least one year to be eligible for in-state tuition. See A.R.S. § 15-1802(B). Section 15-1802 also provides certain exceptions to that one-year domicile rule, e.g., for dependents whose parents are domiciled in Arizona, members of the armed forces and their dependents who are stationed in Arizona, and members of Indian tribes whose reservation land lies within both Arizona and another state. See A.R.S. § 15-1802(B)-(K).

Section 15-1803 provides an additional avenue for in-state tuition. Eligibility under § 15-‍1803 is based on attendance at and graduation from an Arizona high school, irrespective of the student's past or present residence. Specifically, § 15-1803 provides that "a student, other than a nonimmigrant alien … is eligible for in-state tuition" if she attended "any public or private high school option or homeschool equivalent … while physically present in this state for at least two years" and graduated "while physically present in this state or obtained a high school equivalency diploma in this state." A.R.S. § 15-1803(B).

Thus, residence is not what triggers eligibility under § 15-1803. Although many people who meet the eligibility requirements will also be residents, not all will be. And whether someone is or is not a resident is simply not relevant to the eligibility inquiry under § 15-1803. Some Arizona residents will not be eligible for in-state tuition pursuant to § 15-1803, and some students who are eligible for in-state tuition under § 15-1803 will not be Arizona residents.

In the first category, a student can be an Arizona resident without having attended high school in Arizona for the two years required by § 15-1803(B), and without having graduated from an Arizona high school.

In the second category, a student can qualify for in-state tuition under § 15-1803 without being a current resident of Arizona. For example, a student could meet the statute's attendance and graduation requirements, move to another state, and then plan to return to Arizona for college. That student would not be a current Arizona resident, but would be eligible for in-state tuition under § 15-1803.

Moreover, a student might have never been an Arizona resident while attending and graduating from an Arizona high school. Title 15 provides for several circumstances in which nonresident students may attend Arizona public schools, e.g., if they pay a reasonable tuition or are members of an Indian tribe whose land is located both in Arizona and another state. See A.R.S. § 15-823(A), (G). A student who crosses into Arizona every day to attend school from a different state would not be an Arizona resident but could qualify for in-state tuition if she met § 15-1803's attendance and graduation requirements. See id. Likewise, a student who attended and graduated from an Arizona boarding school could qualify for in-state tuition under § 15-1803, but would not be an Arizona resident if her parents lived in another state. See id. § 15-1802(C) ("The domicile of an unemancipated person is that of the person's parent.").

These examples help illustrate what is clear from the text of § 15-1803—the statute does not establish in-state tuition eligibility "on the basis of residence." 8 U.S.C. § 1623(a). For similar reasons, the California Supreme Court upheld a similar state statute. See Martinez, 241 P.3d at 866. It held that § 1623 "specifically referred to residence" but California's attendance and graduation requirements for in-state tuition status were "based on other criteria." Id. at 863-64. That reasoning is just as true in Arizona, and § 15-1803 is consistent with 8 U.S.C. § 1623.

Conclusion

Proposition 308 is consistent with federal law.

Kristin K. Mayes

Attorney General

[1] This Opinion assumes for the sake of argument that Congress had the authority to enact 8 U.S.C. §§ 1621 and 1623, even though those statutes regulate states' provision of public benefits.