National Housing Law Project Housing Law Bulletin

HUD Issues Final Regulations on Undocumented Immigrants

HUD has issued final regulations to implement 42 U.S.C.A. § 1436a (West 1995), the statute that limits eligibility for some of HUD's programs to citizens and certain categories of immigrants. They are published at 60 Fed. Reg. 14,816 (Mar. 20, 1995) and will be codified primarily in 24 C.F.R. §§ 200.180-200.192, 235.13, 812.5-812.15, 905.310 and 912.5-912.14. These final regulations will become effective June 19, 1995. They differ very little from the ones that were proposed by HUD last summer for public comment.¹

In summary, under the statute, only citizens and six categories of non-citizens are eligible to benefit from certain HUD programs. The covered programs are public and Indian housing, Section 8 and Section 236 housing, Rent Supplement housing, HODAG housing and Section 235 homeownership. If a family applies for any covered housing after June 19, 1995, it will have to establish whether each of its family members is eligible. If not all members are eligible, the housing assistance that the family would otherwise qualify for will be pro-rated to reflect the presence in the household of the ineligible family members. If none of the household members is eligible, the application will be denied.

If a family is already living in HUD-assisted housing on June 19, 1995, it also will have to establish the eligibility of all family members. If the family has no eligible members, its housing assistance will be terminated unless it can demonstrate that additional time is needed to move to other affordable housing. That deferred termination may be for only six-month intervals, up to a maximum of three years.

Families with some members who are eligible and some who are not, i.e., mixed families, may have more options beyond deferred termination. Such families will be allowed to continue to receive assistance indefinitely if the head of the family or the spouse of the head has eligible status, and any ineligible members are either the parents, spouse or children of the household head or spouse. Mixed families in which neither the head nor spouse is eligible, or in which at least one ineligible family members is not the parent, grandparent or child (e.g., an uncle), may qualify for pro-ration of the assistance and possibly deferred termination of assistance.

During implementation of these regulations, tenants, applicants and owners are likely to encounter a series of questions. The regulations will answer many of them, as the following discussion indicates.

Who must establish eligibility and how do they do it?

After June 19, 1995, each member of any household that is already participating in one of the covered programs or is applying to do so will have to establish his or her eligibility. The only exception will be individuals who choose not to contend that they are eligible, in which case they will be treated as being ineligible.²

All current residents and applicants who are citizens, and all current residents who are over 62 but are not citizens, will be able to establish their eligibility by solely by declaration. They will not have to provide documentation of their citizenship or immigration status and there will not be any Immigration and Naturalization Service (INS) verification. If they are claiming to be over 62, they will have to submit documents that establish their age.³ If there are cases where the PHA or owner suspects that the declaration of citizenship or age is fraudulent, the providers and PHAs are to use the ordinary procedures for dealing with fraud, not any special rules for this particular type.⁴

All others who claim eligible immigration status, i.e., all non-citizen applicants and all non-citizens who are current residents (except for those over 62), will be required to submit documentation, and those documents will have to be verified by the INS.⁵

There is always a danger that information that public housing authorities (PHAs) and landlords get from the INS or the families will be misused. The proposed regulations had allowed HUD, PHAs and project owners to release information they have received to HUD, the INS or other government agencies if required by law.⁶ In the final regulations, HUD has provided more protections to tenants' and applicants' privacy interests. It has prohibited owners and PHAs from releasing the information to anyone besides HUD and the INS and, even then, the information may be released only for purposes of verifying the individual's immigration status.⁷ Similarly, HUD may release the information only to the INS, and then only to verify the person's immigration status. However, under the regulations, neither HUD nor the PHA or the landlord will be responsible for misuse of the information by the entity to which they have released it.⁸

May a family be evicted or denied admission while the household members' eligibility is being established and verified?

Congress decided that a family should not lose its assistance merely because of the time it takes to verify eligibility status and to resolve any disputes about eligibility. The regulations implement that congressional decision in several respects. First, no applicant's housing assistance may be delayed pending final determination by the INS of the applicant's status.⁹ Thus, if the applicant reaches the top of the waiting list before the INS completes its verification process or before any INS hearing is finished, the applicant must be offered housing assistance even though eligible status has not been established. Once the INS process is completed, the application may be put on hold, i.e., delayed, while the hearing at the housing provider level is being held. During that latter period, the housing provider will not be required to offer a unit or a subsidy.¹⁰

Current tenants' assistance may not be terminated before a final determination of the tenants' status.¹¹ Final determination will include both an appeal within the INS of any adverse INS finding of the person's status and a hearing by the PHA or other housing provider. Only then may the termination occur or the eviction be undertaken.

Both applicants and current residents are entitled to an extension of time to produce their documents, if they are temporarily unavailable and prompt and diligent efforts will be made to obtain them.¹²

What procedures are there for correcting errors?

Congress was careful to require procedural protections to catch mistakes that may be made in the process of determining whether an individual has an eligible status. The first step, for individuals who are required to submit documents, is that the person's status must be verified by the INS. The PHA or owner first uses INS's computerized SAVE system to find out whether the person has the status that he or she is claiming. If that inquiry establishes that the person has the claimed status, then he or she is deemed eligible and that is the end of the matter.¹³

If the SAVE system does not verify that the person has the claimed status, then the INS has to conduct a manual search of its records to determine whether the claimed status is correct.¹⁴ If that search does not verify the claimed status, the person is entitled to an appeal within the INS to resolve the dispute.¹⁵ The proposed HUD regulations would have required the individual to go through the PHA or landlord to initiate that review and would not have assured the person any significant involvement in the review process. The final regulations allow people to handle their appeals at the INS directly. The family must submit a request to INS in writing for an appeal of the INS decision, and send a copy to the PHA or owner.

The request for a review must be submitted within 30 days of rejection, unless the owner grants an extension for good cause, and the INS must make a decision within 30 days after receiving the relevant documentation.¹⁶ If the INS appeal still does not result in the person being found to have eligible status, the person may then secure a hearing from the PHA or landlord.¹⁷

In which situations may families who are already receiving assistance keep their subsidies?

Congress was concerned that the ineligibility of some family members not force families either to give up the subsidies they already have or to expel ineligible members from the household. Congress was also concerned that families already participating in the programs not be made homeless because of these requirements. As a result, Section 1436a has some provisions that allow families to continue their assistance even though one or more members are ineligible, or at least to defer the termination to allow an orderly transition to other housing.¹⁸

Under the final regulations, families currently receiving assistance who meet the statutory definition of eligible mixed families will continue to be assisted.¹⁹ Mixed families are those in which some, but not all, household members are citizens or have eligible immigration status. The statute makes continued assistance available only to mixed families in which either the head of the family or his or her spouse is eligible and in which any ineligible members are either the children, parents or the spouse of the eligible household head or eligible spouse.²⁰ Families meeting that definition will not have to individually demonstrate that they would be unable to find alternative housing without assistance.

The regulations for private owner programs state that such families "shall" receive continued assistance.²¹ Those for public housing state that the families "may" receive assistance.²² For certificates, vouchers and Section 8 Moderate Rehabilitation, the regulations state that the PHA has discretion to determine whether to continue assistance, but that it must incorporate the criteria in the statute and regulations for making the determinations.²³ Those gradations are a product of the statutory language that gives PHAs discretion in the programs they administer to make the continued assistance determinations.²⁴

Other mixed families, i.e., those who do not meet the statutory definition of families eligible for continued assistance and applicants who are not currently receiving assistance, will be eligible for pro-ration of their assistance.²⁵ Generally speaking, the household's assistance will be reduced to reflect the ineligible members. It will be calculated by multiplying the assistance payment the family would otherwise qualify for by the percentage of eligible household members.

Current residents who do not qualify for continued assistance and who decide not to accept pro-ration of assistance will be entitled to deferral of termination of their assistance for up to three years, in order to enable the ineligible members or the entire family to move in an orderly fashion to affordable housing.²⁶ The other affordable housing must be appropriately sized for the family, must not be substandard, and must not cause the family to pay a rent increase of more than 25 percent. For programs other than Section 8 and public housing, the deferral must be granted (1) if the family demonstrates that, despite reasonable efforts, it has been unable to find other affordable housing; (2) if the vacancy rate in its housing market is 5 percent or less; or (3) if the local Consolidated Plan indicates there is insufficient housing available to families of its size and income.²⁷ For public housing and Section 8, the regulations are less specific about when the deferral must be granted.²⁸ When the household's deferral of termination expires, the family will be entitled to pro-ration of the assistance if it has made a good faith effort to secure other housing.²⁹

If a family is denied continued assistance or deferral of termination, it must be notified and informed of the reasons. The family may have a right to appeal.³⁰

Who is eligible for pro-ration and how is assistance pro-rated?

There will be some mixed families who do not qualify for continued assistance and may not qualify for deferred termination of assistance. For example, applicants do not qualify for either continued assistance or deferred termination. In addition, current residents who have ineligible extended family members living with them are not allowed to have their assistance continued, although they may qualify for deferred termination. Deferred terminations may not exceed three years. Mixed families that fall into these categories will be eligible for pro-ration of their assistance, which should be to their financial benefit.³¹

In general terms, as previously noted, the household's assistance will be reduced to reflect the presence of ineligible members. It will be calculated by multiplying the assistance payment the family would otherwise qualify for by the percentage of household members who are eligible. Thus, for programs like Section 8 and Rent Supplement, the first step in pro-ration is to calculate the family's share of the rent as if all members had eligible status, including the income of both eligible and ineligible members. That share is subtracted from the rent to produce the housing assistance payment for which the family would otherwise be eligible. That assistance payment is reduced by an amount equal to the percentage of household members who do not have eligible immigration status.³² For example, if the family's normal share of the rent is $300 and the contract rent is $500, the assistance payment the family would otherwise be eligible for would be $200. If the family has four members, one of whom does not have eligible status, the assistance payment would be reduced by one quarter to $150 and the family's share of the rent would rise to $350.

The regulations follow essentially the same formula for the Section 236 program and public housing, except that there are minor variations in the manner of calculating the assistance for which the family would otherwise be eligible. In place of fair market rents, public housing maximum rents (to be supplied by HUD) are used in public housing and market rate rents are used in Section 236.³³

How are residents and applicants protected against discrimination in the operation of these provisions?

There is obviously a high risk that some citizens and individuals with eligible immigration status will be discriminated against when these provisions are implemented. If they are people of color with a national origin outside the United States, there will be cases where they will rejected out of hand by PHA and landlord personnel, where their declarations of citizenship or age will be less likely to be accepted, where they will be treated differently in the verification and hearing processes, and where it will be more difficult for them to secure continuation of assistance and deferred termination.

Such discriminatory treatment would violate the Fair Housing Act and the 1964 Civil Rights Act. The regulations cross-reference Title VI of the 1964 Civil Rights Act, the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973 and their implementing regulations to remind PHAs and landlords to comply with those laws when implementing the regulations.³⁴ The cross-reference requires compliance with those non-discrimination mandates; however, it does not spell out in any manner what those statutes prohibit in this context. Given the complexities of the interaction of the civil rights laws and the statute that disqualify some non-citizens, additional regulatory guidance would have avoided many problems for applicants, residents and housing providers.

There will also be problems when the applicants or participants are not fluent in English. In those cases, the regulations require the PHAs and owners to translate notices and other documents into the person's language, if that is feasible.³⁵

As with any change in the rules for HUD's housing assistance programs, there will be a risk of mistakes and injustice, both during their introduction and in their ongoing operation. Thus it is important for PHAs and owners to be careful when implementing the regulations and for advocates to vigilantly defend against mistakes and abuses.

1. 59 Fed. Reg. 43,900 (Aug. 25, 1994); see HUD Issues New Regulations on Undocumented Immigrants, 24 HOUS. L. BULL. 92 (Sept./Oct. 1994).
2. 24 C.F.R. § 200.183 (1995). The references are to the regulations published at 60 Fed. Reg. 14,816 (Mar. 20, 1995). We include cites only to Part 200 of 24 C.F.R., although there are parallel changes proposed for Parts 812, 905 and 912.
3. 24 C.F.R. § 200.183(b).
4. 59 Fed. Reg. at 43,907-08 (Aug. 25, 1994).
5. 24 C.F.R. § 200.183.
6. Proposed 24 C.F.R. § 200.183(d)(2).
7. 24 C.F.R. §§ 200.183(d)(2) and (3) and §§ 912.6(d)(2) and (3).
8. Id.
9. Id. § 200.186; Introductory Comment, 60 Fed. Reg. at 14,820.
10. 24 C.F.R. § 200.186; Introductory Comment, 60 Fed. Reg. at 14,820.
11. 24 C.F.R. § 200.186; Introductory Comment, 60 Fed. Reg. at 14,820.
12. 24 C.F.R. § 200.183(h).
13. Id. § 200.185(b).
14. Id. § 200.185(c).
15. Id. § 200.186(e).
16. Id.
17. Id. § 200.186(f).
18. 42 U.S.C.A. § 1436a(c) (West 1994).
19. 24 C.F.R. § 200.187(b).
20. 42 U.S.C.A. § 1436a(c)(1)(A) (West 1994).
21. 24 C.F.R. § 200.187(b).
22. Id. § 912.10(b).
23. Id. § 812.10(b)(2).
24. 42 U.S.C.A. § 1436a(c)(1) (West 1994).
25. 24 C.F.R. § 200.188.
26. Id. § 200.187(c).
27. Id.
28. Id. §§ 812.10(d) and 912.10(c).
29. Id. 200.187(d).
30. Id. § 200.187(e).
31. Id. § 200.188.
32. Id. §§ 200.188(b)(1) and 812.11(b).
33. Id. §§ 200.188(b)(3) and 912.11.
34. Id. § 200.190.
35. Id. § 200.180(a).