MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rye ("respondent") that her son, Sol Sebastian Jiminez, is not a district resident. For the reasons set forth below, this matter is remanded to respondent for further proceedings consistent with this decision.

Petitioner is a native of Colombia, who is presently in the United States on a business/pleasure or "tourist" visa that was issued on August 2, 2000 and expires on July 30, 2005. Respondent contends that her son also holds a business/pleasure visa, but the record does not contain a copy of any visa issued to petitioner's son.

Petitioner entered into a written lease agreement for an apartment in respondent's district effective September 1, 2000 through August 31, 2001. A representative of the lessor sent a letter to the district dated September 1, 2000, advising school officials of the lease and indicating that petitioner and her son would be living in the apartment as their primary residence.

On or about September 6, 2000, petitioner sought to enroll her son in respondent's schools. By decision dated September 12, 2000, the district"s Executive Director for Business, Facilities & Technology denied the application solely on the basis that petitioner and her son had entered the United States on business/pleasure visas, asserting that such visas did not permit the child to attend school here. He made no determination as to whether the factual circumstances would have supported a residency determination absent the visa issue. This appeal ensued.

Petitioner attempted to seek interim relief to admit her son into respondent's schools pending a decision in this appeal, but her application for interim relief was procedurally deficient. However, respondent voluntarily agreed to admit the student pending a decision, and the student has been attending respondent's schools since October 18, 2000.

Petitioner seeks a determination that her son is a resident of the Rye City School District and is entitled to attend respondent's schools without payment of tuition. Respondent contends that, per conversations with the Immigration and Naturalization Service ("INS"), the business/pleasure visas do not permit the holder to attend public schools in the United States. Respondent also cites to "625 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (codified at 8 U.S.C. "1184[l]), governing applications by aliens for F-1 nonimmigrant status to attend a public school, but it is unclear from the responding papers why respondent contends that this provision allegedly affects petitioner's residency application.

Education Law "3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675). For purposes of Education Law "3202, a person can have only one residence; a residence is not lost until it is abandoned and another is established through action and intent (Appeal of a Student with a Disability, 36 Ed Dept Rep 113, Decision No. 13,674). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Smith, 39 id. 67, Decision No. 14,175; Appeal of Dimbo, supra). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of White, 39 Ed Dept Rep 103, Decision No. 14,186; Appeal of Bogetti, 38 id. 199, Decision No. 14,014).

Petitioner's nonimmigrant business/pleasure visa was issued pursuant to 8 U.S.C. "1101(a)(15)(B). The governing regulations require that, to qualify for this type of visa, such nonimmigrants must evidence an intent to leave the United States at the end of the temporary stay (22 C.F.R. "41.31[a][1]). The question then arises whether the holder of a business/pleasure visa can establish a domicile or residence in the United States. The United States Supreme Court, in Elkins v. Moreno, 435 U.S. 647 (1978), left this question open. The Court determined that, for purposes of determining eligibility for in-state tuition to a state university, the application of an irrebutable presumption of nonresidence to a holder of a G-4 visa (for officers and employees of certain international organizations) violated due process, because a G-4 visa had no requirement that the alien maintain a permanent residence abroad or pledge to leave the United States at a certain date. However, the Court specifically noted that it "...need not decide the effect of a federal law restricting nonimmigrant aliens [other than G-4 aliens]" (435 U.S. at 663-64). The Court certified to the Maryland Court of Appeals the question of whether state law would bar holders of G-4 visas from becoming domiciliaries of the state.

I conclude that respondent improperly applied an irrebutable presumption that the holder of a business/pleasure visa cannot, by virtue of the nature of the visa alone, be a resident of the district or attend the district's schools without the payment of tuition. The courts in New York have long recognized that, under certain circumstances, the "mere fact that a person enters the United States on a non immigrant <sic> visa does not establish as a matter of law that she may not acquire a domicile in this country" (Cocron v. Cocron, 84 Misc 2d 335, 343 [Sup Ct Kings Co 1975], citing Jacoubovitch v. Jacoubovitch, 279 App Div 1027, app den, App Div 1078 [2d Dept 1952], and Taubenfeld v. Taubenfeld, 276 App Div 873 [1949], rearg and app den, 276 App Div 918 [2d Dept 1950]; seealsoMtr of Cheng San Chen v. Toia, 67 AD2d 1085 [4th Dept 1979] aff"d subnomEnonoto v. Toia [1980]). The court in Cocron added, however, that the alien status may be considered as an evidentiary factor to determine whether domicile has in fact been established.

There are New York cases that have held that a holder of a nonimmigrant visa may not receive certain benefits accruing to residents of New York, but such cases have turned on an interpretation of a specific requirement in a particular statute or regulation or contract (e.g., St. Francis Hosp. v. D'Elia, 71 AD2d 110 [2d Dept 1979], app den, 49 NY2d 701 [1980], and Papadoupoulos v. Shang, 67 AD2d 84 [1st Dept 1979] [federal regulation, affecting eligibility for medical assistance under Social Services Law "131-k, expressly requires that an alien be lawfully "permanently" residing in the United States]; Kellybee Ent., Inc. v. Actors Equity Association, 91 Misc 2d 455 [Civil Ct New York Co 1977] [Actors Equity by-laws define "alien resident" as immigrant lawfully admitted for permanent residence]). New York's residency statute, Education Law "3202(1), contains no such reference to federal law or immigration status. While I recognize that the cases cited above do not address Education Law "3202(1), respondent has not referenced any case law that expressly prohibits such aliens from establishing residency for school attendance purposes. Additionally, although respondent refers to conversations with INS officials, respondent does not supply the names or positions of such officials nor are any affidavits from such INS officials attached to respondent's papers. Further, although respondent states in conclusory terms that the district "may not allow the attendance" of holders of business/pleasure visas in the public schools, respondent does not cite any specific State or federal law that expressly prohibits the holder of a business/pleasure visa or the holder's child from attending a public school in New York.

I do not find respondent's oblique citation to 8 U.S.C. "1184(l) relevant to the instant appeal. This provision governs applications for visas under 8 U.S.C. "1101(a)(15)(F)(i) for persons whose sole purpose for entering the United States is to attend a public educational institution in this country. There is no indication in the record before me that this was the sole purpose of petitioner and her son's entry into the United States. Respondent recognizes that "1184(l) does not affect all students whose parents are in the United States on nonimmigrant visas, and guidance issued by the INS advises that "1184(l) does not affect aliens, or the qualified school-age children of aliens, who hold another type of nonimmigrant visa.

The Commissioner has previously recognized that it is unreasonable to create an irrebutable presumption that a person cannot be deemed a resident based solely upon the mechanism by which they entered the country, and that a school district must at least make sufficient investigation into the facts to establish the traditional two-part standard of presence and intent (Appeal of Ramirez, 40 Ed Dept Rep ___, Decision No. 14,449). I noted in Ramirez that the U.S. Supreme Court in Plyer v. Doe, 457 U.S. 202 (1982), recognized that even children who are illegal aliens cannot be denied a free public education if they are, as a factual matter, district residents. Although the two children in Ramirez initially entered the United States on business/pleasure visas, I found that, upon consideration of all the facts in the record, the students had established residency in accordance with State law. Like respondent in this appeal, the respondent in Ramirez argued that forming a subjective intent to remain in the district would conflict with the conditions for issuance of a nonimmigrant visa. The consequences of such a change of intent are, however, matters of federal immigration law, and are not incorporated into New York's school residency law. The Supreme Court in Plyer v. Doe cautioned that

(457 U.S. at 225).

In any event, even if such a change of intent constituted a violation of federal law, the Court indicated that even the threat of deportation was insufficient reason to deny the student admission to a school district if the student otherwise met the criteria for residence:

(457 U.S. at 226).

In sum, it is my conclusion that the State has not included any consideration of federal immigration status in Education Law "3202(1), for purposes of establishing a nonimmigrant child's residence in a school district, and a school district may not impose an irrebutable presumption that the holder of a nonimmigrant visa cannot be a resident of the school district. Instead, the child's status should be determined in accordance with the traditional two-part test for residency. The fact of the nonimmigrant visa and the assurances made by the nonimmigrant at the time the visa was issued are factors that may be taken into consideration, together with other factors relevant to residency, in making the residency determination. The nonimmigrant should be afforded the opportunity to show that he or she currently meets the traditional two-part test of physical presence as an inhabitant within the district and an intent to reside in the district.

THE APPEAL IS REMANDED.

IT IS ORDERED that, within 21 days of the date of this order, respondent hold a hearing pursuant to 8 NYCRR "100.2(y) to determine whether Sol Sebastian Jiminez is a resident and entitled to attend the schools of the Rye City School District, and that, prior to respondent making this determination, petitioner shall be afforded a full opportunity to submit any and all information concerning her son's right to attend school in the district.

IT IS FURTHER ORDERED that respondent permit Sol to remain enrolled in the schools of the Rye City School District until respondent issues a residency determination.

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