Carlson

We must decide whether a state university may classify an alien temporary non-immigrant visa holder student as a nonresident for tuition purposes.

I

Nicole Carlson, a Canadian citizen, entered the United States in 1996 under a “TD” nonimmigrant visa and has lived in California since that time. Under the terms of the North American Free Trade Agreement (“NAFTA”), a TD visa holder is authorized to enter the United States solely on a temporary basis; as a condition of entry, the visa holder must disclaim any intent to establish permanent residence in this country. 8 C.F.R. 214.6; 22 C.F.R. § 41.59 . Despite such restriction on her visa, however, Carlson alleges that California is her one and only domicile. Carlson has periodically applied for, and received, annual extensions of her TD visa.

In 1997, Carlson applied for admission to San Jose State University (“SJSU”), part of the California State University (“GSU”) system. She was advised by a SJSU representative that she would be classified as a nonresident, and hence could not attend SJSU on the tuition-free basis afforded California residents. Carlson appealed her nonresident classification to Linda MacAlhster, University…