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State Law AB 540

On October 12, 2001, Governor Gray Davis signed into law Assembly Bill 540 (Stats. 2001, ch. 814) adding a new section, 68130.5, to the California Education Code. Section 68130.5 created a new exemption from the payment of non-resident tuition for certain non-resident students who have attended high school in California and received a high school diploma or its equivalent.

AB 540 Guidelines & 68130.5 Requirements for Eligibility

  • Must have attended a California high school for 3 or more full academic years (between grades 9 though 12, inclusive and does not need to be consecutive years);
  • Must have or will graduate from a California high school or have attained a G.E.D.; or received a passing mark on the California High School Proficiency Exam (CHSPE);
  • Must register or is currently enrolled at an accredited institution of public higher education in California;
  • Must file or will file an affidavit as required by individual institutions, stating that the filer will apply for legal residency as soon as possible;
  • Must not hold a valid non-immigrant visa (F, J, H, L, A, E, etc.)

AB 540 Ineligibility

An ineligible student is one who does not meet the AB 540 criterion. In most situations, not having met the three years attendance at a California high school is what prevents a student from qualifying for AB 540. Students can still attend as long as they meet the admissions criteria and are accepted by the college or university, but must pay non-resident fees.

AB 540 Affidavit

The AB 540 Affidavit serves two purposes; one is to verify that the student meets the educational requirements, and the second is to certify the intent to establish legal residency.

The first purpose relates to educational eligibility where students must indicate:

Yes or No I have graduated from a California High School or have attained the equivalent thereof, such as a high school Equivalency Certificate issued by the California State GED Office or a Certificate of Proficiency, resulting from the California High School Proficiency Examination. And,

Yes or No I have attended high school in California for three or more years.

Students must also provide information on all schools attended in grades 9-12 and submit required documentation (high school transcript) as specified by the institution.

The second purpose refers to the eligibility for exemption on non-resident tuition. To exempt a student from paying non-resident tuition the Affidavit must be completed prior to enrollment at an institution. The legal document certifies that the student is in the process of legalizing their residency status or will file for legal residency as soon as eligible.

Non-resident tuition exemptions ARE granted for students who indicate on the affidavit (as long as the educational criterion is also met):

  • I am NOT a nonimmigrant alien (including, but not limited to, a U.S. citizen, permanent resident, or an alien without lawful immigration status).

Non-resident tuition exemptions are NOT granted for students who indicate on the affidavit:

  • I am a nonimmigrant alien {including, but not limited to A FOREIGN STUDENT (F Visa) or exchange visitor (J visa)}.

The information provided is declared under penalty of law of the State of California and the signature verifies that the information is correct and accurate. In addition, the California State University and the University of California require documentation of high school attendance and graduation (or its equivalent) in support of the affidavit.

The affidavit is found on the Enrollment Services website. The affidavit and supporting documentation of high school attendance and graduation should be submitted after the admission offer is made to the student and before the student pays tuition and fees.

California Residency and Legal Permanent US Residency Definitions

To establish physical residence in California, a person must possess ability to legally establish residency in the state. A US citizen, permanent resident (green card holder), or holders of specialized immigration visas may establish legal state residency. An adult, who is physically present in the state and who, at the same time, intends to make California his or her permanent home may establish legal residence. Steps must be taken at least one year prior to the residence determination date to show intent to make California the permanent home with concurrent relinquishment of the prior legal residence.

Lawful Permanent US Residency
is defined as a person who has a ― green card‖ and may legally reside permanently in the United States.

A Lawful Permanent Resident (LPR) may work in the US and may serve in the military, pay taxes, but cannot vote. An LPR may become a US citizen through naturalization.

Unprotected immigrant
student is defined as a non-citizen student who came to the United States without any legal immigration documents or someone who entered with a visa and stayed after the time in which they were authorized to be here (Pg. ii, Immigration Law Training Institute Booklet, University of California Riverside, Department of Law & Public Policy).

Immigration Advice

Immigration law is extremely complex and constantly changing, therefore faculty and staff are advised NOT to give “immigration advice” to students, but rather to advise them to seek professional legal assistance from an immigration attorney. Utilizing unauthorized public benefits; such as federal assistance while undocumented can be deemed grounds for automatic deportation the day the individual is able to adjust his immigration status.

Federal Law: FERPA

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. As a result, universities cannot release the student’s information, including the fact that they are undocumented, except under very specific circumstances, such as a court order. For more information about what can be released about students and the campus policy statement, please see Releasing Student Information on the Enrollment Services website.

Tax Reporting – ITIN and Tax Form 1098-T

The Internal Revenue Service (IRS) issues an Individual Tax Payer Identification Number (ITIN) for federal tax purposes only to non-resident aliens. However, the ITIN may also be used for filing California state tax purposes.

AB 540 students are taxed and report the same as US citizens. However, unlike US citizens that report with a social security number (SSN), AB 540 students report using an ITIN. Students that do not have an ITIN should obtain one as soon as they get their first scholarship letter or file income taxes. The form and instructions are available on the IRS website. A list of Acceptance Agents for IRS can also be found on-line. Students must submit the completed application accompanied by original or certified copies from the issuing agency of the documentary evidence of alien status and identity such as a passport, foreign birth certificate, etc. One piece of documentary evidence should contain photo identification. For questions on how to obtain the ITIN and its use, students are advised to go to the Internal Revenue Service website.

AB 540 students that receive scholarships are encouraged to file federal and state income taxes. Only the cost of the tuition, fees, books and required equipment for students pursuing a degree are tax exempt. Filing is the student’s responsibility and is the prudent thing to do, so that the student establishes a record as a lawful taxpayer. Normally tax withholding will be not be made at the time the scholarship is given, so the student may reserve funds to pay for the required taxes, which could be in the range as high as 28 percent.

Finally, the scholarship provider will ask the student to complete the W9-s form for the provider’s records. The form does not go to the IRS, but stays with the scholarship provider for their reports. To find the form on the IRS website, type in W-9S or go to

Compliance with Tax Form 1098-T

Near the end of the calendar year, some students may be contacted by Student Financial Services informing them that the Social Security Number (SSN) or Individual Taxpayer Identification Number (ITIN) on their student account is either missing or invalid. This is done because the Internal Revenue Service (IRS) requires all colleges and universities to request SSNs or ITINs from enrolled students in order to comply with Form 1098-T reporting requirements that pertain to educational tax credits (pursuant to the Taxpayer Relief Act of 1997.)

Students who are not filing for tuition tax credit do not have to complete the Request for Taxpayer Identification Number and Certification, nor provide an ITIN or SSN to the university. Students who are filing for tuition tax credit must follow the instructions to accommodate the Student Financial Services request. Questions may be directed to 562-985-5457.

State Law: The California Dream Act of 2011

The California Dream Act of 2011(AB 130 and AB131) is the name of laws created by two bills authored by Assemblymember Gil Cedillo, passed by the California Legislature and signed into law by the Governor Jerry Brown in 2011. The California Student Aid Commission was directed to develop an application form for AB 540 students to apply for California state financial aid. Completion of this form is required to determine eligibility for state financial aid for AB 540 eligible students. The application is processed by the California Student Aid Commission (CSAC) and sent to the campus Financial Aid Office.

The Dream Application can be found on line at . It is NOT an application for Federal financial aid. Undocumented AB 540 must NOT complete the FAFSA (Free Application for Federal Student Aid) because they are not eligible for Federal financial aid. Filing a FAFSA can be considered by Homeland Security’s Bureau of Customs and Immigration Services (BCIS) as an application for a public benefit for which an undocumented student is not eligible. Penalties can be severe, including jail and deportation.<./p>

Students eligible to file for Federal aid should apply using the FAFSA to maximize their opportunities to receive state and federal student financial aid. The FAFSA application is on line at

Cal Grant Primer

There are two types of grants available as Cal Grants: the entitlement grants and the competitive grants. Each has its own requirements.

Under entitlement grants, eligible student are guaranteed a Cal Grant A if they have at least a 3.0 grade point average and apply by March 2 either of the year they graduate from high school or the following year. The Cal Grant A guarantee provides for tuition and fees at the California State University, the University of California and tuition support at participating independent colleges and universities and career colleges. If a student receives a Cal Grant A but attends a California Community College first, his or her award will be reserved for up to three years until the student transfers to a four year college, if the student continue to qualify. These students must notify their transfer school that they have a reserved grant. High school seniors and community college transfer students are a targeted group for Cal Grants, however all other undocumented students are encouraged to apply as there are other university support programs for which the students may be eligible.

Cal Grant A and B Competitive Awards are available for students who do not qualify for the entitlement grants. The competitive grants are not guaranteed. Each year 22,500 competitive grants are awarded. . Half of the grants are awarded to eligible students that apply by March 2. The remaining half is set aside for California Community College students who meet the September 2 deadline. For a complete description, go to the California Student Aid Commission web site.

There is a third Cal Grant for Technical and Vocational Students. Cal Grant C awards assist with tuition and training costs for occupational, technical, and vocational programs. The award includes funds for books, tools and equipment, tuition and fees if the student will be attending a school other than a California Community College (community colleges don’t charge tuition and fees will be waived as a Cal Grant recipient). Funding is available for up to two years, depending on the length of the program. To qualify, one must enroll in an occupational, technical, or vocational program that is at least four months long at a California Community College, an independent college, or a vocational/career school. Even though a GPA is not required to apply for a Cal Grant C, students are still encouraged to submit that information because it can only help their chance of receiving an award.

Part One: AB 130

Signed into law on July 25, 2011, AB 130 became effective January 1, 2012. AB 130 allows AB 540 students to be eligible for colleges and universities privately funded scholarships. AB 130 is the first of the California Dream Act.

At CSULB all privately funded scholarships offered by the university are open to AB 540 students. The only scholarships that are not available to AB 540 students are those where a donor has specified the eligibility requirements.

Part Two: AB 131

AB 131 was signed into law on October 8, 2011, and becomes effective on January 1, 2013. This new law allows students who meet the AB 540 criteria to apply for and receive institutional grants, like the State University Grant, Educational Opportunity Program and Services fee waivers and the University of California Grants. California Community College students can apply for and receive Board of Governors fee waivers. AB 540 eligible students can also apply for and receive state financial aid, including Cal Grants and Chafee Foster Youth Grants for use at eligible public and private institutions.

To qualify for California financial aid through AB 131, AB 540 students must:

  • Have attended a California high school for three or more full academic years between grades 9 through 12. They do not need to be consecutive years.
  • Have or will graduate from a California high school or have attained a GED; or received a passing mark on the California High School Proficiency Exam (CHSPE);
  • Registered or be currently enrolled at an accredited institution of higher education in California.
  • Not hold a valid non-immigrant visa (F, J, H, L, A, B, E, etc.);
  • Demonstrate financial need and meet all other program requirements.
  • In addition, undocumented students must file an affidavit as required by the individual institutions that the filer will apply for legal residency as soon as possible.
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