DOJ Sues New Jersey for In-State Tuition to Undocumented Students

New Jersey families who followed every rule now watch their children compete for the same college seats and aid packages extended to undocumented classmates who grew up in the state. On May 1, 2026, the Justice Department filed a complaint challenging two New Jersey statutes that grant in-state tuition rates and state financial assistance to certain noncitizens. The suit, brought against the state, its higher education commission, the Educational Opportunity Fund board, acting higher education secretary Margo Chaly and the student assistance authority, argues the policies violate federal law by discriminating against U.S. citizens.

At the center of the dispute sits 8 U.S.C. § 1623. The statute prohibits states from providing postsecondary education benefits to individuals unlawfully present in the United States on the basis of residency unless those same benefits are available to citizens. New Jersey’s 2013 law opens in-state tuition to students who attended at least three years of high school in the state, graduated or received an equivalent credential, and sign an affidavit promising to seek legal status when eligible. A 2018 measure extended access to state scholarships and aid programs. According to the Justice Department, these provisions unconstitutionally favor noncitizens over citizens from other states and create incentives for illegal immigration.

Assistant Attorney General Brett A. Shumate called the matter straightforward. The department will not accept American students being treated as second-class citizens. Associate Attorney General Stanley Woodward added that granting such benefits denies educational opportunity to citizens in their own country. The complaint represents one front in a wider enforcement push. The department has brought similar actions against at least seven other states; courts have enjoined laws in Texas, Kentucky and Oklahoma while cases in California, Illinois, Minnesota, Nebraska and Virginia remain pending.

Yet the legal picture is more layered than the complaint suggests. A federal judge dismissed an identical challenge to Minnesota’s statute earlier in 2026, ruling that tying eligibility to high-school attendance rather than residency satisfies the federal requirement. That precedent, reported by Higher Ed Dive, was not referenced in the New Jersey filing. Legal analysts note that the underlying welfare-reform statute contains an affirmative legislative path states may follow; New Jersey enacted its measures through that route. The state has not yet publicly responded to the latest suit.

The tuition battle unfolds against a backdrop of sweeping resource reallocation. FBI records obtained by The Intercept through FOIA show personnel assigned to immigration-related matters surged from 279 before President Trump’s January 2025 inauguration to more than 6,500 by September. Over nine months, 9,161 FBI employees spent at least part of their time on these duties, roughly one-quarter of the bureau’s workforce. Experts including Aaron Reichlin-Melnick of the American Immigration Council described the scale as striking. David Bier of the Cato Institute warned it diverts agents from criminal investigations and counterterrorism at a time of heightened national-security tensions following U.S. strikes on Iran.

Administration officials maintain the shifts support public safety. Many redirected efforts targeted criminal noncitizens; ICE operations during the period produced thousands of arrests focused on individuals with prior convictions. Southern border encounters fell sharply in fiscal 2025 to levels not seen in decades, according to Customs and Border Protection data. Still, the precise breakdown of FBI “immigration-related” work remains unclear. Bureau and ICE officials declined to detail whether the numbers referred to special agents only or included support staff, or how much of the workload involved civil versus criminal matters.

Twenty-one states plus Washington, D.C., currently offer in-state tuition to undocumented students who meet residency or attendance criteria, while 18 states and D.C. extend state financial aid, according to the Higher Ed Immigration Portal. Supporters of these policies describe them as pragmatic recognition that young people brought to the U.S. as children or long-term residents contribute taxes and labor yet cannot access federal student aid. Opponents counter that any state-level preference undermines uniform federal immigration rules and burdens citizen taxpayers.

The New Jersey case will test how courts reconcile these competing views. No trial date has been set. Legal observers expect New Jersey to argue its high-school-based eligibility test distinguishes the program from simple residency discounts barred by statute. The Justice Department will likely press that any differential treatment based on immigration status still triggers the federal prohibition. Resolution could reshape higher-education access for hundreds of thousands of students nationwide while clarifying the boundary between state education policy and federal immigration authority.