National Housing Law Project Housing Law Bulletin

HUD Finalizes Rules Restricting Housing Assistance for Non-Citizens

HUD published the final regulations governing the extension of housing assistance to non-citizens on May 12, 1999./1/ The new rules, which took effect June 11, implemented recently enacted statutory provisions affecting Section 214 of the Housing and Community Development Act of 1980,/2/ which regulates housing assistance to noncitizens. The regulations implemented a provision of the 1998 public housing legislation/3/ that precludes public housing authorities (PHAs) from choosing not to follow Section 214. They also finalized provisions of the 1996 Immigration Act/4/ that placed restrictions on the assistance that may be provided to noncitizens. HUD previously adopted interim regulations to implement the 1996 Immigration Act/5/ and solicited public comment to those regulations. The newly published regulations make those changes final. The new regulations do not, however, implement the changes required by the 1996 Welfare Reform Law./6/ Those changes, HUD announced, will be implemented through a separate, future rulemaking.

The 1996 Immigration Act amended Section 214 to require that administering agencies verify the eligibility of non-citizens prior to providing them with assistance. Section 575 of the act was drafted, however, in a manner which provided housing authorities the option of not complying with Section 214 altogether. When HUD published the interim regulations implementing the 1996 amendments to Section 214, it confirmed the intent of Section 575 by permitting PHAs to opt-out of compliance with Section 214 entirely. In response, Congress enacted Section 592 of the Quality Housing and Work Responsibility Act of 1998,/7/ which removed the option. In its stead, Congress gave PHAs the option of not affirmatively establishing and verifying the eligibility of an individual or household for housing assistance before providing that individual or household with financial assistance. The new final regulations incorporate both of these changes./8/

The regulations also set out how PHAs which, in reliance on the interim regulations, opted out of enforcing Section 214, must now comply with the new provisions. Specifically, they give PHAs the authority to begin eligibility verifications under Section 214 immediately but only require that they be made before the individual’s or family’s annual recertification. Thus, it is possible that some households may not have their eligibility determined for another year.

The 1996 Immigration Act placed several new restrictions on the extension of assistance to noncitizens which were previously implemented by the interim rules. These changes are now made permanent by the final rules. While there is little difference between the interim and final rules, the following is a brief summary of the most significant changes:

• If an administering agency, including a PHA, elects not to provide assistance prior to verification of an applicant’s status, it may not provide assistance to a household until eligibility of a single member of the household has been determined. In addition, until the eligibility of all household members has been determined, the assistance extended to the household must be prorated on the basis of the number of individuals in the household whose eligibility has been determined.

• Families that have a mix of members with eligible immigration status and who have received assistance under a Section 214 covered program as of June 19, 1995, may continue to receive assistance, without proration, after November 29, 1996. This is provided that the head of the household, or spouse, is eligible to receive assistance and no person residing with the family, other than an immediate family member as defined by the regulations, is ineligible to receive assistance because of his or her immigration status. Families that have a mix of members who became eligible for assistance after November 29 may continue to receive assistance. However, it must be prorated based on the percentage of family members eligible for assistance.

• Administering agencies must terminate assistance to a family for at least 24 months if it determines that the family has knowingly allowed an ineligible individual to live on a permanent basis in the family’s unit and that person’s ineligibility was not already considered in establishing the household’s prorated assistance.

• Entities administering assistance under a program regulated under Section 214 can now require appropriate documentation of U.S. citizenship in addition to the previously authorized documentation of status by noncitizens.

• The maximum period that termination of assistance can be deferred for a person who received assistance prior to November 29, 1996, but who was subsequently found ineligible has been reduced from an aggregate of three years to18 months. However, persons who were granted deferrals prior to November 29, 1996, will continue to be eligible for an aggregate of three years. Neither the three-year nor the 18-month limits applies to people who are considered refugees or are seeking asylum.

• Individuals seeking to appeal a termination or denial of assistance based on an ineligibility determination under Section 214 are given 30 days in which to request a fair hearing. The period commences from the date the individual received a notice of the denial or termination of assistance.

As noted earlier, with the exception of the PHA opt-out provisions, the final rule adheres very closely to the Nov. 29, 1996 interim rule. The only public comment that was adopted by HUD in promulgating the final rule is a change in the list of documents that may be used to prove citizenship or U.S. nationality status. Specifically, HUD eliminated Social Security and registration cards as acceptable proofs of citizenship since they do not evidence a person’s citizenship.

For a more detailed analysis of the changes made by these regulations see Non-Citizens’ Right to Housing Assistance, 26 Housing Law Bulletin 170 (December 1996).

Notes

1    Revised Restrictions on Assistance to Noncitizens; Final Rule, 64 Fed. Reg. 25,726-25,733 (May 12, 1999).

2    42 U.S.C.A. § 1436a (West 1994) (hereafter Section 214).

3    Section 592 of the Quality Housing and Work Responsibility Act of 1988, Pub. L. No. 105-276, 112 Stat. 2461 (Oct. 21, 1998) amends Section 214 of the Housing and Community Development Act of 1980 (42 U.S.C. §1436a).

4    The Use of Assisted Housing by Aliens Act of 1996 (Title V, Subtitle E of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §§ 571-577, 110 Stat. 3009-546 (Sep. 30, 1996).

5    Those regulations were published on November 29, 1996. 61 Fed. Reg. 60,537. For a more detailed discussion of those regulations, see Non-Citizens’ Rights to Housing Assistance: The 1996 Statutory Amendments and HUD’s Implementing Regulations, 26 HOUS. L. BULL. 170 (Dec. 1996).

6    Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No.104-93, 110 Stat. 2105 (Aug. 22, 1996).

7    Pub. L. No.105-276, 112 Stat. 2461 (Oct. 21, 1998).

8    64 Fed. Reg. 25,725, 25,731 (May 12, 1999) amending 24 C.F.R. § 5.512.

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