dissenting.
I respectfully dissent from the court’s decision upholding 15 AAC 23.615(d) as a valid exercise of the Department of Revenue commissioner’s regulatory authority. I do not agree that 15 AAC 23.615(d), which excludes most classes of aliens from dividend eligibility, is consistent with or reasonably necessary to carry out the statutory purposes of AS 43.23.005(a)(1) and AS 43.23.095(a).1 Nor do I agree that the legislature delegated authority to the commissioner to pass a regulation which actually changes the eligibility standard.
The Permanent Fund Dividend Division (hereafter “department”) declared Arturo and Tomas Cosio ineligible to participate in the Permanent Fund Dividend Program, AS 43.23, based on a department regulation, 15 AAC 23.615(d). Before it was repealed in 1989,2 the regulation stated: “An alien with resident alien status or a refugee otherwise qualifying under [the provisions of state law pertaining to such eligibility] is eligible to receive a permanent fund dividend.” 15 AAC 23.615(d). Because the Cosíos’ federal immigration status during the dividend years in question was other than “resident alien” or “refugee,” the department declared them ineligible.
The superior court reversed this decision on appeal, ruling that there was an impermissible conflict between the department’s eligibility requirements and those established by the legislature in AS 43.23.-005(a)(1) and .095(8). Cosio v. State, No. 3AN-82-6892 Civ. (Alaska Super. December 13, 1990). The court noted that only “state residents]” qualify to receive permanent fund dividends. AS 43.23.005(a)(1). It further noted that “state resident” is defined as “an individual who is physically present in the state with the intent to remain permanently in the state.” AS 43.23.-095(8). The superior court then held:
Since [the legislature has declared that] eligibility is determined by the applicant’s intent, the [department] may not deny eligibility based on someone else’s intent. Immigration status is one factor which may be considered in evaluating an applicant’s intent, but it is not deter*631minative under the current statute, without amendment.
Cosío v. State, Dept. of Revenue, No. 3AN-82-6892 Civ. at 4. (Alaska Super., December 13, 1990). The superior court declared the regulation invalid, and the case came to this court for review.
I
The first question I address is the proper degree of deference to be afforded the department’s regulation. The court does not directly address the proper standard to be used to review the department’s interpretation of the phrase “intent to remain permanently in the state.”3 AS 43.23.-095(8). The court instead looks to the statutes which authorize the commissioner of the Department of Revenue “to promulgate regulations implementing the permanent fund dividend program.” Maj.Op. at 623. The court states that AS 43.23.015(a), providing that the commissioner “shall adopt regulations ... for determining the eligibility of individuals for permanent fund dividends,” requires the commissioner to set “substantive eligibility requirements.” Maj.Op. at 624. The court then concludes that this statutory authority also permits the commissioner “to promulgate a regulation excluding permanent fund dividend applicants who arguably fall within the statutory definition of eligible applicants.” Maj.Op. at 625 (emphasis added).
In my view, the court’s arguments on this point are flawed, and the entire discussion is misdirected. The court notes that, in addition to AS 43.23.015(a), the legislature authorized the department to “adopt regulations that establish procedures and time limits for claiming a permanent fund dividend.” Maj.Op. at 624 (quoting AS 43.-23.055(2)). The court then concludes that AS 43.23.015(a) would be superfluous if it were read to only grant the commissioner the authority to promulgate “procedural regulations” because section .055(2) already provides this authority. Slip Op. at 4.
First of all, the regulatory authority granted by section .015(a) is plainly distinct from section .055(2). The former section provides the commissioner the authority to adopt criteria and proofs for a claimant to establish dividend eligibility.4 The later section requires the department to adopt regulations setting the procedures and time limits for claiming a dividend. Thus, section .015(a) allows the department to regulate the eligibility determination process and section .055(2) allows it to set up general procedures for claiming dividends. There is nothing redundant or superfluous about these separate grants of regulatory authority.
Furthermore, I would not dispute that AS 43.23.015(a) delegates to the commissioner some substantive or quasi-legislative rulemaking authority. Assessment of a person’s subjective intent is often difficult, and when a particular intent will entitle an applicant to receive a substantial sum of money, there will always be those willing to alter the truth. Thus, it is clear that the legislature gave the department the authority under AS 43.23.015(a) to adopt regulations which allow it to evaluate an applicant’s subjective intent, to the extent possible, by means of objective criteria.5 See *632State v. Anderson, 749 P.2d 1342, 1345 n. 8 (Alaska 1988) (“an agency does not need a specific grant of power to adopt each individual provision of a regulation”). However, contrary to the present court’s analysis, the fact that the commissioner has some quasi-legislative rulemaking authority does not end the inquiry into the department’s authority to adopt 15 AAC 23.615(d). The key question is whether the subject matter of the regulation is within the scope of authority which the legislature conferred on the commissioner.
As we noted in Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971):
Certain provisions of the Alaska Administrative Procedure Act provide guidance as to the standard of review for regulations adopted pursuant to an administrative agency’s quasi-legislative rule-making function. AS 44.62.020 states in part:
To be effective, each regulation adopted must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.
AS 44.62.030 states:
If, by express or implied terms of a statute, a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, a regulation adopted is not valid or effective unless consistent with and reasonably necessary to carry out the purposes of the statute.
In deciding whether the regulation is “effective” under AS 44.62.020 as “within the scope of authority conferred” by the legislature, this court’s job is to determine if “the legislature has intended to commit to the agency discretion as to the particular matter that forms the subject of the regulation.” Id.; see generally Anderson, 749 P.2d at 1344-45.
I find no indication in the language of AS 43.23.015(a) that the legislature intended to commit the dividend eligibility of certain classes of immigrants to the department’s discretion.6 As we implicitly recognized in Anderson, legislative delegation is usually done when “the agency has the necessary expertise to determine the best means” of accomplishing a particular legislative goal. Id. at 1345. In this case, the subject matter of the regulation does not relate to the means of proving dividend eligibility, arguably something within the department’s field of expertise. The regulation, in fact, amounts to the department’s legal conclusion that certain classes of immigrants do not have the capacity to legally “intend to remain permanently in the state.”7
The court’s opinion does not even attempt to provide, nor do I perceive, a sound basis for concluding that the legislature intended the department to use its discretion to further define the qualities of a “state resident,” particularly by means of federal immigration status. The definition of “residency” as “physical presence plus a *633subjective intent to remain permanently” is a particularly legal concept well known to this court and, presumably, the legislature. The Permanent Fund Dividend Division has no special expertise in this area, much less is it an expert in the intricacies of federal immigration law.8
As noted above, the department must certainly be afforded some deference in adopting and implementing regulations which permit it to determine dividend eligibility. I conclude, however, that the department was not authorized to proscribe dividend eligibility for a class of applicants who actually, or “arguably” as the court puts it, satisfy the presence and intent requirements. In other words, the department may not set up impediments to eligibility that go beyond those established by the legislature. For these reasons, I would hold that 15 AAC 23.615(d) is void as viola-tive of AS 44.62.020 and AS 44.62.030, and I would affirm the superior court’s decision.
II
Ordinarily, there would be no need for me to proceed further. However, even accepting the court’s view that AS 43.23.-015(a) granted the commissioner broad authority to pass regulations covering the subject matter of 15 AAC 23.615(d), I believe the court’s decision seriously misrepresents federal immigration law. Therefore, in order to bring out what I believe are erroneous assumptions, I will presume that the department had the authority to promulgate 15 AAC 23.615(d) and that the only question is whether the regulation “adds a permissible gloss” to the statutory definition of state residency. See Maj.Op. at 625.
The department declared the Cosíos ineligible to receive permanent fund dividends because they were not “resident aliens” or “refugees” and were therefore ineligible under 15 AAC 23.615(d). The department argues that its regulation is reasonable and consistent with AS 43.23.005(1) and AS 43.-23.095(8) because an alien who does not have permanent resident or refugee status does not have the “legal ability to remain permanently in the state.” Brief of Petitioner at 16. The department maintains that “any person without permanent residence status can be deported despite his wish to remain [in the state].” Id. at 10. Thus, the department concludes, non-resident aliens cannot “legally intend to do that which by law ... they are prohibited from doing.” Id. (quoting Juarrero v. McNayr, 157 So.2d 79, 81 (Fla.1963)).
The court essentially agrees with the department that 15 AAC 23.615(d) simply infers “a requirement of lawful action from the statute.” Maj.Op. at 625. The court then cites a case, Simpler v. State Commercial Fisheries Entry Comm’n, 728 P.2d 227, 230 (Alaska 1986), where we held that an agency may reasonably impute a lawfulness component into statutes when adopting regulations. The court states that it is entirely appropriate to assume “that the legislature did not intend to reward unlawful conduct.” Maj.Op. at 625. It continues:
It makes abundant sense to conclude that aliens who may not legally live in Alaska are not permanent residents for dividend purposes. To exclude such people from the permanent fund dividend program is consistent with public policy which regards it as unwise to reward illegality.
Maj.Op. at 625.
If it were, in fact, true that 15 AAC 23.615 excludes from dividend eligibility only those aliens who may not legally live in Alaska, then I would have to commend the common sense result which the court reaches today (if not the analysis it employs to reach it). However, a short examination of federal immigration law demonstrates that a regulation restricting dividend eligibility to citizens and immigrants with “resident alien” and “refugee” status is over-inclusive if its purpose is to avoid *634rewarding illegality.9 In other words, immigrants without the specific immigration status listed in the regulation may still be present in Alaska legally and may “lawfully” have the subjective intent to remain in the state indefinitely.
A few examples suffice to make this point. Foreign diplomats or foreign fiancees of United States citizens may enter this country under non-immigrant visas and may subsequently petition the Immigration and Naturalization Service to adjust their non-immigrant status to permanent resident status so long as certain criteria are met. See 8 U.S.C. § 1255-1255a (1988 & Supp.1993). In fact, almost all classes of lawfully admitted non-immigrants may use the adjustment of status mechanism to gain permanent resident status. Id. Although most classes of non-immigrants would violate the terms of their visas and be subject to deportation if they had the subjective intent to remain permanently in the United States at the time they entered the country, the United States Immigration Code does not prohibit lawfully admitted non-immigrant aliens from subsequently petitioning the government to remain in the country indefinitely.10
In a ease which is instructive in this regard, the United States Supreme Court held that aliens holding certain types of non-immigrant visas were not prevented, as a matter of federal law, from forming the intent necessary to establish state residence. See Elkins v. Moreno et al., 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978).11 The court held:
Under present law ... were a G-4 alien [i.e. an officer of a foreign governmental agency] to develop a subjective intent to stay indefinitely in the United States, he would be able to do so without violating either the [Immigration] Act, the Service ⅛ regulations, or the terms of his visa.
Id. 435 U.S. at 666, 98 S.Ct. at 1349.
Given this controlling federal precedent, I am at a loss to understand this court’s position that 15 AAC 23.615(d) merely serves to impute a legality requirement into the statutory definition of “state resident.” Under 15 AAC 23.615(d), a person could be lawfully admitted to this country, be physically present in Alaska for many years, form the subjective intent to remain permanently in the state (without violating federal immigration laws), and still be ineligible to receive a permanent fund dividend.12 I do not believe this result is either consistent with or reasonably necessary to carry out the purposes of AS 43.23.005(a) *635and .095(8). See AS 44.62.030; Zamarello, 486 P.2d at 911. The regulation is therefore invalid. Id.
Non-resident immigration status is simply an unreliable indicator of an alien’s legal ability to intend to remain in the state. While the department was entitled to consider the Cosíos’ immigration status as a factor in its “totality of the circumstances” review, it was not authorized to declare the Cosio’s ineligible to receive dividends based solely on their immigration status.13 I would therefore affirm the superior court’s decision.
. Most of the statutes involved in this appeal were substantially revised in 1991 and 1992. These revisions do not apply to the Cosíos and will not affect my analysis. I recognize that AS 43.23.005 now requires that an individual, in addition to being a state resident, either be a United States citizen or a permanent resident, refugee or asylee in order to be eligible for a permanent fund dividend.
This change in the statute does not deter me from concluding that 15 AAC 23.615(d), a regulation creating a similar standard, is invalid both because the Department of Revenue commissioner had no authority to create a stricter eligibility standard and because the regulation is inconsistent with the statute in its old form. As for the legislative history suggesting that the present legislature was trying to validate the regulation by amending the statute to clarify rather than change the existing law, I note this court’s discussion in Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1252 (Alaska 1988), wherein we stated that “[w]hile the legislature is fully empowered to declare present law by legislation, it is not institutionally competent to issue opinions as to what a statute passed by an earlier legislature meant." See also Wrangell Forest Prod. v. Alderson, 786 P.2d 916, 918 n. 1 (Alaska 1990). If anything, the change in the law supports my conclusion that the prior statute does not permit immigration status to be used to establish per se dividend ineligibility. As we noted in Hillman, an "amendment to an unambiguous statute is generally presumed to indicate a substantive change in the law.” Hillman, 758 P.2d at 1252 (quoting Torkko/Korman/Engineers v. Penland Ventures, 673 P.2d 769, 773-74 (Alaska 1983)). I believe the old statute defining "state resident" for dividend eligibility purposes was completely unambiguous, and that the new statutory language must be read to effect a change in the law.
. The Alaska Administrative Code currently contains the following provision:
(a) An alien who before January 1 of the qualifying year has been granted permanent resident under 8 U.S.C. 1101(a)(20), refugee status under 8 U.S.C. 1157 and 8 U.S.C. 1159, or asylum under 8 U.S.C. 1158 and who otherwise qualifies is eligible for a dividend.
(b) An alien who has been granted conditional resident status meets the requirements of permanent resident status under (a) of this section.
(c) An alien who does not fall within the provisions of (a) or (b) of this section is not eligible for a dividend.
15 AAC 23.153.
. The department claims that because 15 AAC 23.615(d) interprets the statutory phrase "intent to remain permanently" and provides an objective standard for determining eligibility, adoption of the regulation "implicate[s] special agency expertise [and/or] the determination of fundamental policies within the scope of the agency’s statutory function.” Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). Thus, the department urges this court to apply the "rational basis” standard in examining its actions. Id.
. The legislature’s purpose in passing this section is made apparent from the second sentence of the section which provides that "the commissioner may require an individual to provide proof of eligibility, and the commissioner may use other information available from other state departments or agencies to determine the eligibility of an individual.” AS 43.23.015(a).
. An example of this type of regulation would be 15 AAC 23.143. Subsection (a) provides in part:
An individual's intent to establish residency, remain permanently in Alaska, or return to Alaska and remain permanently is demonstrated through the establishment and mainte*632nance of customary ties indicative of Alaska residency and the absence of those ties elsewhere.
Id. Another example is 15 AAC 23.173, which lists specific indicia of intent as "proof of eligibility." Similar regulations covering the dividend years at issue in this case, 1985-87, were repealed in 1989. See 15 AAC 23.030(b) and .050(b) repealed 4/1/89.
. Nor do I agree that the commissioner was authorized to “make substantive regulations resolving questions as to who is and who is not a permanent resident." Slip Op. at 8. The determination of who is a "state resident" was accomplished by the legislature when it passed AS 43.23.095(8) which unambiguously defines the term. The legislature simply authorized the commissioner to promulgate rules and procedures which would allow the department to divine which applicants truly satisfy the definition.
. The misdirection aspect of the court’s analysis becomes apparent at this point. It does not really matter whether the commissioner has quasi-legislative rulemaking authority in general; it only matters whether 15 AAC 23.615(d) was passed pursuant to that authority or whether it is actually an example of a so-called "interpretive regulation.” See Kelly, 486 P.2d at 909. Even the department acknowledges that the regulation is simply interpreting a statutory phrase. In its brief, the department proclaims that "[a]t issue in this case is the validity of a regulation interpreting the statutory phrase ‘intent to remain permanently.’" Brief of Petitioner at 5.
. I believe the court’s reliance on Whaley v. State, 438 P.2d 718, 722 (Alaska 1968) is flawed precisely because the court never accounts for the fact that the rules and regulations in question in Whaley were of the type which implicated the Director of Personnel’s expertise.
. I assume that there is no dispute amongst my colleagues that the legality or illegality of which we speak is determined solely by federal law. The United States Constitution exclusively entrusts immigration matters to the federal government. See Graham v. Richardson, 403 U.S. 365, 378, 91 S.Ct. 1848, 1855, 29 L.Ed.2d 534 (1971).
. Even aliens who enter this country without inspection or overstay a visa (i.e. those commonly referred to as "illegal aliens”) have certain defenses to deportation available to them by federal statute. Those aliens who qualify may be granted withholding of deportation, suspension of deportation, temporary protected status, and asylum. See 8 U.S.C. §§ 1252-54a (1988 & Supp.1993). All of these remedies, if granted, will allow an alien to remain in this country indefinitely, as permanent residents. Id. Therefore, it is a doubtful proposition to say even of these aliens that they may not "lawfully” intend to remain in the country indefinitely.
. Many state courts have similarly concluded that non-immigrant aliens have the capacity to form the intent necessary to establish “domicile” or "residency" for divorce purposes. See Pirouzkar v. Pirouzkar, 51 Or.App. 519, 626 P.2d 380 (1981); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982). Although this court has not passed on this issue, I do not read the majority opinion as holding that non-resident aliens are precluded, as a matter of state law, from forming the intent necessary to establish "residency.” See, e.g., Perito v. Perito, 756 P.2d 895, 897-98 (Alaska 1988) (discussing the residency requirements under state law which are sufficient to establish a trial court’s jurisdiction over a divorce).
.To those who would argue that non-immigrant aliens only have to wait until the Immigration and Naturalization Service grants them permanent resident status to become eligible for dividends, I would point out that the adjustment of status process often takes many years to complete. Also, this argument erroneously assumes that those pursuing this option cannot "legally” intend to remain in the meantime.
. Because I would declare 15 AAC 23.615(d) invalid on statutory grounds, I do not believe this court needs to address the constitutional arguments raised by the parties. Accordingly, I take no position on the analysis the court today employs to uphold the constitutionality of the regulation.