[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20710]
[[Page Unknown]]
[Federal Register: August 25, 1994]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 200, et al.
Restrictions on Assistance to
Noncitizens; Proposed Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 200, 215, 235, 236, 247, 812, 850, 880, 881, 882, 883,
884, 886, 887, 900, 904, 905, 912 and 960
[Docket No. R-94-409; FR-2383--P-04]
RIN 2501-AA63
Restrictions on Assistance to Noncitizens
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement section 214 of the Housing
and Community Development Act of 1980, as amended. Section 214
prohibits the Secretary of HUD from making financial assistance
available to persons other than United States citizens, nationals, or
certain categories of eligible noncitizens in HUD's Public Housing and
Indian Housing programs (including homeownership), the section 8
housing assistance payments programs, the Housing Development Grants
program, the section 236 interest reduction and rental assistance
programs, the Rent Supplement program, and the section 235
homeownership program.
DATES: Comments due date: October 24, 1994.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of the General
Counsel, room 10276, Department of Housing and Urban Development, 451
7th Street, SW., Washington, DC 20410-0500. Comments should refer to
the above docket number and title. A copy of each comment submitted
will be available for public inspection during regular business hours
weekdays at the above address. Facsimile (FAX) comments are not
acceptable.
FOR FURTHER INFORMATION CONTACT: For the covered programs, the
following persons should be contacted:
(1) For Public Housing, Section 8 Certificate, Rental Voucher, and
Moderate Rehabilitation (except Single Room Occupancy--``SRO'')
programs --Edward Whipple, Rental and Occupancy Branch, Office of
Public Housing, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410-5000, telephone (202) 708-
0744;
(2) For Indian Housing programs--Dominic Nessi, Director, Office of
Native American Programs, Department of Housing and Urban Development,
451 Seventh Street, SW., Washington, DC 20410-5000, telephone (202)
708-1015;
(3) For the Section 8 Moderate Rehabilitation SRO program--Barbara
Richards, Acting Director, Office of Special Needs Assistance Programs,
Department of Housing and Urban Development, 451 Seventh Street, SW.,
Washington, DC 20410-7000, telephone (202) 708-4300;
(4) For the other Section 8 programs, the Section 236 programs,
Housing Development Grants and Rent Supplement--Barbara Hunter, Program
Planning Division, Office of Multifamily Management, Department of
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC
20410-8000, telephone (202) 708-3944; and
(5) For the Section 235 homeownership program--William Heyman,
Office of Lender Activities and Land Sales Registration, Office of
Single Family Housing, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410-8000, telephone (202) 708-
1824.
For persons with hearing impairment, the TDD number is (202) 472-
6725. None of the foregoing telephone numbers are toll-free.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act Statement
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget (OMB) for review
under the Paperwork Reduction Act of 1980. No person may be subjected
to a penalty for failure to comply with these information collection
requirements until they have been approved and assigned an OMB control
number. The OMB control number, when assigned, will be announced by a
separate notice in the Federal Register.
Public reporting burden for the collection of information
requirements contained in this rule is estimated to include the time
for reviewing the instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
Information on the estimated public reporting burden is provided
under the preamble heading Other Matters. Send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to the Department of
Housing and Urban Development, Rules Docket Clerk, 451 Seventh Street,
SW., room 10276, Washington, DC 20410; and to the Office of Management
and Budget, Office of Information and Regulatory Affairs, Attention HUD
Desk Officer, room 3001, Washington, DC 20503.
II. Statutory and Regulatory Background
The restrictions on providing housing assistance to noncitizens
with ineligible immigration status have been embodied in statute since
1980. Section 214 of the Housing and Community Development Act of 1980
(94 Stat. 1637) (Section 214) was the original basis for restrictions
on providing assistance to noncitizens with ineligible immigration
status in the assisted housing programs. Section 214 was amended by
section 329(a) of the Housing and Community Development Amendments of
1981 (94 Stat. 408), by section 121(a)(2) of the Immigration Reform and
Control Act of 1986 (``IRCA'', 100 Stat. 3384), and by section 164 of
the Housing and Community Development Act of 1987 (101 Stat. 1860).
(Section 214, as amended by these statutory sections, is codified at 42
U.S.C. 1436a.)
There have been numerous attempts by HUD to implement by regulation
the statutory restrictions on providing assistance to noncitizens with
ineligible immigration status. Rules, both proposed and final, were
published in 1982 (47 FR 18914, and 47 FR 43674), in 1986 (51 FR
15611), and 1988 (53 FR 842, and 53 FR 41038). Despite the publication
of final rules during the period between 1982 and 1988, the statutory
restrictions of section 214 have not been made effective. A detailed
history of the regulatory efforts to implement section 214 (including
why the final rules were not made effective) can be found in the rule
published on January 13, 1988 (53 FR 842).
The most recent proposed rule implementing section 214 (before
publication of this proposed rule) was published on October 19, 1988
(53 FR 41038). The proposed rule published in today's Federal Register
is based on the October 19, 1988 proposed rule, and takes into
consideration public comment received on the October 19, 1988 proposed
rule. The discussion of public comments is set forth in section VII of
this preamble.
III. Procedural Matters
A. No Restrictions on Use of Assistance Until Final Rule Is Published
and Effective
Until a final rule implementing section 214 is published and made
effective, there are no HUD restrictions on the use of assisted housing
by noncitizens with ineligible immigration status. Consequently, until
this proposed rule has reached the final rule stage, covered entities
(i.e., housing authorities, managers of HUD-assisted housing, and
mortgagees in the section 235 FHA insurance program) are not authorized
to take any action based on the eligible immigration status of
applicants and tenants.
B. Using the ``Effective Date of the Final Rule'' as the Critical Date
Rather Than ``Date of Enactment''
Paragraph (c)(1) of section 214 was added by the Housing and
Community Development Act of 1987 (the 1987 Act) and confers discretion
on the Secretary of HUD to continue assistance or defer termination of
assistance on behalf of an individual for whom assistance would
otherwise be terminated if that person was ``receiving such assistance
on the date of enactment of the Housing and Community Development Act
of 1987.''
The term ``date of enactment'' is also found in section 214(d) in
the description of the elderly persons who need not provide
documentation of their immigration status. The statute exempts from
such documentation any individual who is ``62 years of age or older,
and is receiving financial assistance on the date of the enactment of
the Housing and Community Development Act of 1987.''
HUD has determined that the provisions of section 214 are too
complex to be determined self-implementing as of the date of enactment
of the 1987 Act (February 5, 1988). Thus, the restrictions of section
214 will not be felt until a final regulation is published and becomes
effective.
The general Congressional intent of section 214(c)(1) was to
protect ``the sanctity of the family.'' (See remarks of Sen. William
Armstrong, 133 Cong. Rec. S18615, December 21, 1987.) To honor this
intent, HUD believes it is necessary to implement the new protective
provisions at the same time that the restrictions of section 214 become
effective. To do otherwise would be to thwart the pro-family intent of
the Congress by prematurely triggering the statute's protections and
rendering them meaningless for families admitted after the enactment
date, but before a final rule effectively applies the restrictions of
section 214.
In other words, since the exact effect on persons applying for or
participating in the covered HUD programs will not be known until
publication of the final rule, HUD is interpreting the statutory
language to permit lenient treatment to persons receiving assistance on
the effective date of the final rule when all parties affected will
have notice of the methods that HUD has chosen for implementing the
statutory restrictions rather than on the precise date of enactment of
the 1987 Act. To limit lenient treatment to persons receiving
assistance on the precise date of enactment would create a category of
persons (admitted between February 5, 1988 and the final rule's
effective date) who would be denied the new statutory protections
simply because of the time associated with promulgation of a final
rule. Support for this position is found in a House Committee Report in
connection with the 1987 Act (H.R. Rep. No. 100-1222, 100th Cong., 1st
Sess. 49 (1987) (``House Report'')). In that report, the Congress
stated: ``The modifications [made by the 1987 Act] are intended to
clarify the original intent of Congress that families in which at least
one person is eligible are not disqualified and that the rules not be
applied retroactively.'' (House Report at p. 50.)
IV. Reimbursement for Costs of Implementing and Operating Verification
System
Section 214(g) authorizes HUD to reimburse covered entities for the
costs incurred in implementing and operating the system developed by
the Immigration and Naturalization Service (INS) for verifying
immigration status. The INS system is referred to as the Systematic
Alien Verification for Entitlements or SAVE.
Although implementation and operation of the INS verification
system is not specifically addressed in this rule, detailed guidance
will be issued to covered entities at the time of publication of the
final rule. HUD will be developing a method of coordinating with the
INS for verifying immigration status through SAVE, which includes an
automated system, and a manual search capability. HUD anticipates that
the cost of necessary verification inquiries made on the automated
system will be billed directly to HUD.
V. Section 214 Coverage of HUD Programs
A. HUD Programs Covered by Section 214
Paragraph (b) of section 214 states that its restrictions
concerning noncitizens with ineligible immigration status apply to the
provision of ``financial assistance made available pursuant to the
United States Housing Act of 1937, section 235, or 236 of the National
Housing Act, or section 101 of the Housing and Urban Development Act of
1965.''
1. Programs Covered by the 1937 Act
The programs providing financial assistance on behalf of tenants
(or homebuyers) pursuant to the United States Housing Act of 1937 (42
U.S.C. 1437 et seq.) (1937 Act) are the Public and Indian Housing
programs, the Section 8 Housing Assistance Payments programs, and the
Housing Development Grant programs (with respect to low income units
only). All of these programs provide housing, either directly (such as
public housing) or indirectly (such as through Section 8 Certificates),
that is assisted by HUD.
a. Public and Indian Housing Programs. Included among the Public
and Indian Housing programs are the Mutual Help and Turnkey III
Homeownership Opportunity programs. The restrictions against financial
assistance to noncitizens with ineligible immigration status are to be
applied to current homebuyers under the Turnkey III and Mutual Help
programs only to the extent that applying the restrictions would be
consistent with existing contracts. All homeownership contracts
executed after the effective date of the final rule will be covered by
the restrictions. Another homeownership program covered is the HOPE for
Public and Indian Housing Homeownership program developed pursuant to
42 U.S.C. 1437aaa.
b. Section 8 Housing Assistance Payments Programs. The Section 8
Housing Assistance Payments programs include New Construction,
Substantial Rehabilitation, Moderate Rehabilitation, Certificate,
Voucher, State Housing Agency and Farmers Home Administered, Section
202 Housing for the Elderly or Handicapped projects (when section 8
assistance is involved), Loan Management and Property Disposition
projects. While the Rental Rehabilitation program also is operated
under the 1937 Act (section 17 of the 1937 Act), it does not provide
financial assistance to tenants except to the extent tenants
participate in the Section 8 Certificate or Voucher programs, which are
separately covered by the restrictions of section 214.
2. Section 235 of the NHA
The program authorized under section 235 of the National Housing
Act (12 U.S.C. 1715z) (NHA), provides for payments by HUD to the
mortgagee on behalf of a low income mortgagor to reduce the homebuyer's
payments to an affordable level, e.g., the higher of a certain
percentage of income or the amount that would be payable if the
interest charged on the mortgage loan were set at some figure such as
four percent. This program is available to purchasers of single family
homes, and to purchasers of units in cooperatives and condominiums. The
rule will affect mainly new applicants for participation in the
program.
Assistance contracts of section 235 homeowners who executed their
contracts before the effective date of this rule will be honored
without regard to their citizenship or immigration status.
Additionally, mortgagors who refinance their section 235 mortgages
(which were executed before the effective date of the final rule, and
whose assistance contracts were unchanged after that date) with
mortgages insured under section 235(r) of the NHA are not subject to
the section 214 requirements. The reason for the latter exemption is
that many old 235 mortgages bear an interest rate higher than 12
percent. If the section 214 requirements (with the required
recertifications) are made applicable to current 235 mortgagors who
agree to refinance under section 235(r), this may be a disincentive to
refinancing, and also would be detrimental to HUD. The section 235(r)
program is designed to aid HUD in saving millions of dollars in section
235 assistance payments by refinancing the 235 mortgages at a lower
interest rate. Because the 235(r) program was designed specifically to
provide for the refinancing of section 235 mortgages, HUD does not
believe that this is the type of contract modification or program
change that triggers the section 214 requirements.
The rule will largely have an impact on current section 235
homeowners themselves only if a homeowner's mortgage is to be revised
for some reason (other than refinancing under section 235(r)), in which
case the modification will include application of the restrictions on
immigration status as if the mortgagor were an applicant for
participation in the assistance program. Although there may be no new
mortgages insured and assisted under this program, at conveyance of
properties already insured and assisted under the program, purchasers
will be required to demonstrate eligibility in order to be approved for
assistance (and thereafter at each annual recertification, to continue
to receive assistance).
3. Section 236 of the NHA
The section 236 program provides for payments to a mortgagee on
behalf of the owner of a rental housing project designed for occupancy
by low income families in order to reduce the owner's payments to the
amount that would be payable if the interest rate on the mortgage loan
were set at a figure such as one percent. These lower mortgage payments
enable the owner to charge qualified tenants lower than market rate
rents (``basic rents''), although tenants who are not qualified for the
benefits of the program may be charged market rate rents. In addition,
rental assistance payments are available for some units in these
projects to enable the rents charged to tenants who cannot afford the
``basic rent'' to be reduced to an amount based on a percentage of
income, similar to the rents charged in the public housing and section
8 programs. This rule applies to all the tenants of a section 236
project who pay a below market-rate rent. It does not apply to tenants
who pay a market-rate rent. (It should be noted, however, that a market
rent tenant would be required to submit evidence of citizenship or
eligible immigration status if he or she subsequently applied for
tenant-based assistance.)
4. Section 101/Rent Supplement Program
The program authorized under section 101 of the Housing and Urban
Development Act of 1965 (12 U.S.C. 1701s), is the Rent Supplement
program. Under this program, HUD makes payments to a housing owner that
is a private nonprofit entity or limited dividend entity and whose
purchase of the property is financed by a mortgage loan insured under
certain HUD programs, or is financed under a State or local program
approved by HUD. These payments are for the benefit of low income
tenants to enable the owner to charge these tenants rents based on a
percentage of their incomes, similar to the rents charged in the public
housing and section 8 programs.
B. HUD Programs Not Covered by Section 214
HUD-assisted housing programs that are not covered by 42 U.S.C.
1436a, and consequently are not covered by this rule, are: (1) The
section 221(d)(3) and (d)(5) program of interest subsidy for projects
with mortgages insured under those sections of the National Housing Act
(12 U.S.C. 17151); (2) the programs developed to serve the homeless
(see 42 U.S.C. 11361), except for Section 8 Moderate Rehabilitation SRO
program (24 CFR part 882, subpart H); (3) the HOPE Homeownership of
Multifamily Units program developed pursuant to 42 U.S.C. 12871; (4)
the HOPE for Homeownership of Single Family Homes developed pursuant to
42 U.S.C. 12891; (5) the HOME program developed pursuant to 42 U.S.C.
12741; (6) the Supportive Housing for the Elderly program developed
pursuant to 42 U.S.C. 1701q; and (7) the Supportive Housing for Persons
with Disabilities program developed pursuant to 42 U.S.C. 8013.
The above listed programs are not covered unless any of these
programs is used in conjunction with a covered program, such as section
8 housing assistance payments.
VI. Overview of 1994 Proposed Rule
The proposed rule published in today's Federal Register (the 1994
proposed rule) is substantially similar to the proposed rule published
on October 19, 1988 (1988 proposed rule). In many respects, section 214
allows little discretion on the part of HUD to expand or reduce the
statutory provisions by regulation. As noted above, section 214 is very
specific about what HUD programs are covered by the statute. Section
214 is also specific about what categories of noncitizens are eligible
to receive HUD financial assistance, the procedures to be used to
verify immigration status, the types of documentation that must be
submitted and who must submit this documentation, the appeal procedures
to be provided to persons initially determined to have ineligible
status, and the special assistance to be provided to certain families
with members who have eligible status and those who have ineligible
status.
A. Summary of Principal Provisions of 1994 Proposed Rule
The following provides a summary of the principal provisions of the
1994 proposed rule.
1. Eligibility for HUD Financial Assistance
Noncitizens eligible for financial assistance are limited to
statutory categories.
Noncitizen students who are nonimmigrants are excluded from
receiving financial assistance in accordance with section 214.
2. Evidence of Eligible Status (Who Submits What)
For citizens--
A written declaration only. (The proposed rule removes the 1988
proposed rule language concerning suspicion of submission of false
declaration of citizenship.)
For noncitizens 62 years of age or older, and receiving HUD
assistance on the effective date of the rule--
A written declaration, and
Proof of age document.
For all other noncitizens--
A written declaration,
A verification consent form, and
Evidence of immigration status.
Election not to declare eligible status. The 1994 proposed rule
also contains a provision that permits a member of a family to elect
not to contend that he or she has eligible status (i.e., the person
elects not to submit a declaration of eligible status), and if other
members of the family declare eligible status and have eligible status,
the family may be eligible for continued assistance, proration of
assistance (see discussion of proration of assistance under section
VI.A.11 of this preamble), or temporary deferral of termination of
assistance, as appropriate.
Permissible to incorporate declaration in housing application
assistance. The 1994 proposed rule does not prescribe a specific
declaration. A responsible entity may provide for the declaration to be
incorporated in the application for assistance, or make it a separate
document. The declaration, however, must cite the statutory authority
under which it is required to be provided, and the purpose for the
requirement (i.e., that financial assistance is contingent upon the
submission of the form). Additional guidance on implementing the
requirements of section 214, that is to be issued at the time of
publication of the final rule, will include model language for the
declaration, as well as the verification consent form.
3. When to Submit Evidence of Eligible Immigration Status
For applicants, the 1994 proposed rule provides for the responsible
entity to require submission of the evidence by the date the
responsible entity anticipates or has knowledge that verification of
other aspects of eligibility for assistance (i.e., income, family
composition) will occur.
For persons already receiving assistance, the rule provides for the
responsible entity to require submission of evidence at the first
regular reexamination of eligibility (i.e., reexamination of income and
family composition) that occurs after the effective date of the final
rule.
For new occupants in an assisted unit, the rule provides for the
responsible entity to require submission of evidence at the first
interim or regular reexamination following the person's occupancy.
One-time submission for continuous occupancy. The proposed rule
clarifies that evidence of eligible status is required to be submitted
only one time for each family member that maintains continuous
occupancy in an assisted unit.
4. Extension of Time to Submit Evidence
The 1994 proposed rule would require responsible entities to grant
an extension of time in which to submit evidence if the applicant or
tenant submits the declaration of eligible immigration status, and
certifies that the evidence needed to support the declaration is
temporarily unavailable, and prompt and diligent efforts to obtain this
evidence will be undertaken. The proposed rule provides that the
extension may not be for an indefinite period, but allows for the
responsible entity to establish a time period that is sufficient for
the applicant or tenant to obtain the needed evidence.
5. When Verification of Eligible Status is to Occur
For applicants, the 1994 proposed rule provides for the responsible
entity to verify evidence of eligible immigration status at the time
the responsible entity verifies other aspects of eligibility for
assistance (i.e., income, family composition).
For persons already receiving assistance, the rule provides for the
responsible entity to verify evidence of eligible status at the time
that it verifies other aspects of eligibility (i.e., reexamination of
income, family composition) for continued occupancy in the assisted
unit.
Verification of evidence of eligible immigration status is to be
treated the same as any other factor which determines a family's
eligibility for assistance.
6. Verification Procedures
The proposed rule provides for the following verification
procedures in accordance with the INS verification systems:
(1) Primary verification of the immigration status is conducted by
means of an automated system (SAVE) that provides access to the names,
file numbers, and admission numbers of noncitizens;
(2) Secondary verification is a manual search by the INS of its
records to determine an individual's immigration status. If primary
verification fails to confirm eligible immigration status, secondary
verification must be performed. The results of primary verification are
not sufficient to conclude that an individual does not have eligible
immigration status.
(3) No waiver of verification procedures. The proposed rule does
not provide for waiver of the INS verification procedures.
7. Protection of Individual's Privacy
Section 214(d)(3) requires HUD to protect the ``individual's
privacy to the maximum degree possible.'' The 1988 proposed rule
provided that evidence of immigration status submitted by an applicant
or tenant to the responsible entity may be released by the responsible
entity to HUD, or to a Federal, State or local agency under specific
circumstances, or may be released by HUD to any Federal, State, or
local government agency (including the Social Security Administration
and the INS) under specific circumstances, and listed those
circumstances.
The 1994 proposed rule recognizes the impossibility of anticipating
all circumstances under which a responsible entity or HUD may be
required to release information. Accordingly, the 1994 proposed rule
removes the list of circumstances, and provides that (1) the
responsible entity may release the information to HUD and the INS for
purposes of determining eligible immigration status, (2) HUD may
release the information to the INS, and (3) the responsible entity and
HUD may release the information to any other Federal, State or local
government agency in accordance with applicable Federal, State or local
law that requires the release of the evidence to that agency.
8. No Delay, Denial, Reduction, or Termination of Assistance Pending
Verification of Eligible Status or Pending INS Appeal; but Delay for
Applicant Following INS Appeal
Consistent with section 214(d)(4), the 1994 proposed rule provides
that assistance to an applicant may not be delayed, reduced, or denied,
and assistance to a tenant may not be delayed, denied, reduced or
terminated, during the pendency of the verification procedures for
eligible status, or during the pendency of the INS appeal procedure.
Consistent with section 214(d)(5), assistance to an applicant may
not be denied, and assistance to a tenant may not be terminated during
the pendency of the informal hearing procedure provided by the
responsible entity. However, section 214(d)(5) only restricts denial or
termination of assistance. Thus, assistance to an applicant may be
delayed, but not denied, during the pendency of the informal hearing
process.
9. Extension of Time to Request INS Appeal or Informal Hearing
The 1994 proposed rule requires the responsible entity extend the
time for requesting an appeal to the INS or for requesting an informal
hearing upon good cause shown by the applicant or tenant.
10. Continued Assistance/Deferred Termination of Assistance
Consistent with section 214, the 1994 proposed rule provides for
assistance to be continued or termination of assistance temporarily
deferred for certain families and under certain circumstances as set
forth in section 214(c)(1).
11. Proration of Assistance
The 1994 proposed rule provides for proration of assistance for
applicant and tenant families containing family members with eligible
and ineligible immigration status (``mixed families''). The allowance
for proration of assistance departs from HUD's previous position on
this issue. HUD previously took the position that proration was not
authorized by section 214, and even if authorized, not feasible in its
covered programs, particularly in HUD's public housing and section 8
programs. On further consideration, HUD acknowledges that the statutory
language does not prohibit proration of assistance, and HUD has
designed formulas for proration that it believes will make proration of
assistance possible in covered programs.
HUD specifically requests comment from the public on the proration
formulas set forth in Secs. 200.188, 812.11, 905.310(s), and 912.11.
HUD welcomes suggestions on alternative formulas and comments on the
subject of proration of assistance, generally.
12. Other
Additional provisions in the 1994 proposed rule (particularly those
that differ from the 1988 proposed rule) are addressed in the
discussion of public comments on the 1988 proposed rule set forth in
section VII of this preamble.
Documents in Other Languages. One additional provision included in
the 1994 proposed rule is a requirement that for any document or notice
that the rule requires the responsible entity (housing authority,
project owner, mortgagee) to provide an applicant or tenant or to
obtain the signature of the applicant or tenant, the responsible
entity, where feasible, is to provide such document in a language that
is understood by the applicant or tenant if he or she is not proficient
in English.
Nondiscrimination Requirements. The 1994 proposed rule includes a
provision that restricts the responsible entity from administering the
restrictions of section 214 in a manner which discriminates or treats
persons differently because of race, color, religion, national origin,
sex, disability or familial status, as prohibited by the Fair Housing
Act (42 U.S.C. 3601-3619), Title VI of the Civil Rights of 1964 (42
U.S.C. 2000d-2000d-5), and section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794). Such unlawful actions include determinations of
eligibility and ineligibility, using different requirements to
ascertain that eligibility or ineligibility, and treating persons
differently, if those actions are based on such factors as language,
country of origin, or family associations.
B. Organization of Proposed Rule
Because of the number of HUD programs covered by section 214, this
proposed rule amends several program regulations in three chapters of
HUD's regulations: 24 CFR Chapter II, Chapter VIII, and Chapter IX.
Within these three chapters, conforming amendments are made to several
parts, and four parts are substantially amended to address the
restrictions of section 214. These parts are: parts 200, 812, 905, and
912. The regulations implementing section 214 in each of these four
parts are divided into the following regulatory sections, and generally
follow the order shown below.
Sec. Definitions. (200.181, 812.2, 905.102, 912.2)
Sec. Requirements concerning notices and documents. (200.180a, 812.5a,
905.310(a), 912.5a)
Sec. General provisions (200.182, 812.5, 905.310(b), 912.5)
Sec. Submission of evidence of citizenship or eligible immigration
status. (200.183, 812.6, 905.310(e), 912.6)
Sec. Documents of eligible immigration status. (200.184, 812.7,
905.310(k), 912.7)
Sec. Verification of eligible immigration status. (200.185, 812.8,
905.310(l), 912.8)
Sec. Delay, denial or termination of assistance. (200.186, 812.9,
905.310(m), 912.9)
Sec. Preservation of mixed and other families. (200.187, 812.10,
905.310(f), 912.10)
Sec. Proration of assistance. (200.188, 812.11, 905.310(s), 912.11)
Sec. Prohibition of assistance to noncitizen students. (200.189,
812.12, 905.310(t), 912.12)
Sec. Compliance with nondiscrimination requirements. (200.190, 812.13,
912.13)
Sec. Protection from liability for responsible entities, State and
local agencies and officials. (200.191, 812.14, 905.310(u), 912.14)
Sec. Liability of ineligible families for reimbursement of benefits.
(200.192, 812.15)
VII. Response to Public Comments on 1988 Proposed Rule
This section of the preamble discusses the significant issues and
questions raised by public comments received on the 1988 proposed rule.
The discussion of public comments on the 1988 proposed rule is included
in the preamble to the 1994 proposed rule to assist the public in
understanding why certain provisions in the 1988 proposed rule were
revised or not revised in the 1994 proposed rule.
During the public comment period for the 1988 proposed rule, 20
comments were received. These represented the views of several housing
authorities, two State departments of housing, project owners, an
association of management agents, and an association of housing
officials, legal services organizations, immigration law organizations,
and an advocacy group for the elderly. Many comments made suggestions
criticizing the restrictions for being too broad, the special relief
for being too narrow, or the procedures for giving inadequate
opportunity to applicants to demonstrate eligibility. However, other
comments focused on the burden placed on the entity responsible for
enforcing the restrictions and complained that the procedures were too
complicated and costly.
In addition to the comments received during the comment period of
the 1988 proposed rule, HUD held an informal meeting at HUD
headquarters in February 1994 on the subject of the restrictions
imposed by section 214. This meeting was attended by representatives of
organizations that included, but were not limited to: The Farmers Home
Administration, the Association of Farmworker Opportunity Programs,
California Rural Legal Assistance, Inc., Chicanos for La Causa, New
York Legal Aid Society, National Center for Youth Law, National Council
of La Raza, National Housing Law Project, and the Puerto Rican Legal
Defense and Education Fund. These organizations submitted additional
written comments at, and subsequent to, the meeting. These comments are
part of the docket file for this rule, and are available for inspection
by the public.
The following provides a discussion of the comments received on the
1988 proposed rule, and notes the changes that HUD made, and declined
to make in the 1994 proposed rule as a result of these comments.
A. Restrictions To Apply on Effective Date of Final Rule
As discussed in section III.B. of the preamble, the 1994 proposed
rule uses, as did the 1988 proposed rule, the phrase ``the effective
date of the final rule'' in lieu of the statutory phrase--``date of
enactment'' of the 1987 Act.
B. Eligible Status
1. Noncitizen Eligibility Limited to Statutory Categories
Two housing agencies and a legal services organization stated that
Seasonal Agricultural Workers (SAWs) and Replenishment Agricultural
Workers (RAWs) should be included in the rule's list of noncitizens
with eligible immigration status. These two categories of noncitizens
were authorized to be given temporary lawful resident status by IRCA,
which also granted amnesty to noncitizens who had resided illegally in
the United States since before January 1, 1982. Although a later
amendment to the HUD statute governing eligible immigration status for
these programs (the 1987 Housing Act) clarified that the latter
category of noncitizens have eligible status, it did not refer to the
SAWs and RAWs. For this reason, the 1988 proposed rule did not include
SAWs and RAWs as having eligible status.
However, after reviewing the language of IRCA pertaining to SAWs
and RAWs (amending sections 210 and 210A of the Immigration and
Nationality Act), and consulting with the Immigration and
Naturalization Service (INS) about the interpretation to be given
sections 210(a)(5) and 210A(d)(4) (8 U.S.C. 1160 and 1161), HUD
determined that noncitizens admitted for temporary or permanent lawful
residence under these sections have eligible status, as long as their
status has not expired or changed. In a letter to HUD dated December
17, 1993, the INS noted that as a practical matter, no additional RAWS
were admitted during Federal fiscal years 1990 through 1993, the period
in which RAWS could have been admitted, and stated that no noncitizens
``were or will be admitted as RAWs.'' Consequently, the 1994 proposed
rule includes reference to SAWs, but not RAWs.
One commenter urged that HUD add to its list of the categories of
eligible noncitizens two categories not expressly recognized by the
statute as having such status: (1) Noncitizens who have lived, worked
and paid taxes in the United States for many years and who will become
legal permanent residents in the near future, such as relatives of
citizens or permanent residents; and (2) noncitizens who are so
elderly, ill, or disabled that the INS will not deport them on
humanitarian grounds.
HUD lacks the legal authority to add these categories of
individuals to the list of those eligible for admission to the programs
covered by this rule. However, if individuals meeting these
descriptions already reside in assisted housing, they may qualify for
continued assistance under the regulatory provisions pertaining to
mixed families if they live with citizens or permanent residents, or
for deferral of termination of assistance if they are unable to locate
alternative suitable housing.
2. Ineligibility of Noncitizen Students
Section 214 provides that noncitizen students who are not
immigrants (i.e., are not seeking to establish residency in the United
States) are not eligible for assistance. The Congress passed the
provision concerning nonimmigrant student noncitizens (sec. 164, Pub.
L. 100-242, 101 Stat. 1861) in the late fall of 1987, directly targeted
against noncitizen students who are nonimmigrant in very emphatic
language: ``Notwithstanding any other provision of law, the Secretary
of Housing and Urban Development may not make financial assistance
available for the benefit of'' a noncitizen student who is a
nonimmigrant. (Emphasis added) HUD lacks the authority to modify this
mandate. However, the Chinese Student Protection Act of 1992, Public
Law 102-404, dated October 9, 1992, allows certain persons who may have
been admitted to the United States as noncitizen students who are
nonimmigrants to adjust their status to that of lawful permanent
residents of the United States, and thus become eligible noncitizens
under this rule. (See 8 CFR part 245 as amended on July 1, 1993, 58 FR
35832.)
HUD, however, has interpreted the restrictions on assistance to
noncitizen students as not applying to the citizen spouse of a
noncitizen student or to the children of the citizen spouse and
noncitizen student.
C. Submission of Evidence of Eligible Status
1. Documentation Requirements--Who Submits What
One commenter urged HUD to require all applicants and tenants,
whether citizens or noncitizens, to submit documentation establishing
eligibility. The commenter insisted that by doing so, HUD would reduce
the likelihood of discrimination by owners, and ensure that applicants
do not bypass the verification procedures by simply declaring that they
are citizens. In contrast, another commenter insisted that HUD's
requirement that noncitizens and citizens submit documentation of
eligible citizenship or immigration status would only increase the
burden on already-busy property managers.
The 1994 proposed rule maintains documentation requirements because
documentation requirements are imposed by statute. However, the 1994
proposed rule revises the documentation requirements for citizens, and
for noncitizens who are or will be 62 years of age or older and are or
will be residing in assisted housing when these regulations take
effect. The 1994 proposed rule removes the requirement in the 1988
proposed rule that citizens and noncitizens 62 years of age or older
and residing in assisted housing submit a verification consent form.
(See section VI.A.2. of this preamble which describes the documentation
required by the 1994 proposed rule.)
The 1994 proposed rule does not modify the documentation
requirements for all other noncitizens (i.e., those who are not 62
years of age or older and residing in assisted housing) because these
documentation requirements for noncitizens are statutorily prescribed
by the Immigration Reform and Control Act of 1986 (IRCA) (42 U.S.C.
1320b-7). Under IRCA, every individual who declares him or herself to
be a noncitizen with eligible immigration status (except for certain
elderly tenants) must submit immigration documents for verification by
the INS. This requirement applies to every member of a household,
including children.
HUD disagrees with the commenter who suggested that requiring all
tenants and applicants to submit documentation of citizenship or
immigration status would lessen the likelihood of discrimination by
responsible entities. Under both the 1988 and 1994 proposed rules, a
responsible entity is required to ask any individual declaring eligible
immigration status to submit immigration documents for verification
with the INS.
Individuals who declare in writing that they are United States
citizens are not required under IRCA to submit proof of citizenship.
HUD construes this provision to mean that the Congress specifically
intended to exempt citizens from IRCA's document submission and
verification procedures, and this statutory construction is reflected
in the 1994 proposed rule, as it was in the 1988 proposed rule. (See,
also, the discussion between Senators Kennedy and Hawkins at 131 Cong.
Rec. S11414, 11417 (daily ed. September 13, 1985).)
This interpretation is supported by the language contained in Part
A of IRCA. Specifically, section 101 of IRCA (Control of Unlawful
Employment of Aliens) amends the Immigration and Nationality Act by
adding a new section 274A (8 U.S.C. 1324a), which provides at section
274A(b) for the establishment of an employment verification system.
Under section 274A(b), the Congress specifically required an employer
to attest under penalty of perjury that it had verified that an
individual was not an unauthorized noncitizen, and that the
verification was based upon a review of certain statutorily prescribed
documents. These documents include, among others, U.S. passports and
certificates of U.S. citizenship or naturalization. This statutory
scheme is markedly absent under HUD's provisions under Part C of IRCA
(Verification of Status Under Certain Programs). Accordingly, given the
marked absence of these requirements from section 214, HUD is not
imposing a proof of citizenship requirement in the rule.
One commenter urged HUD to exempt persons with disabilities from
the rule's ``citizen and noncitizen status documentation
requirements.'' Another commenter asked that the rule exempt from the
documentation requirements all persons who are covered by HUD's
definition of ``elderly person,'' which would include non-elderly
persons and persons with disabilities. The commenter suggested that the
exemption could be limited to those instances where the individual
actually submitted medical proof of his or her disability.
The documentation requirements under the rule are statutorily
mandated under IRCA, and HUD does not have the discretion to
administratively exempt from those requirements a particular group of
persons. Moreover, section 621 of the Housing and Community Development
Act of 1992 (106 Stat. 3812) (1992 Act), which amended section 3 of the
U.S. Housing Act of 1937 (42 U.S.C. 1437a) (1937 Act), revised the
statutory definition of ``elderly person'' to remove the reference to
persons with disabilities and limit this term to persons who are 62
years or older. (Before the amendment, persons with disabilities were
included in the definition of ``elderly person,'' regardless of the age
of the disabled person.) Accordingly, as amended by the 1992 Act a
person with disabilities meets the 1937 Act definition of ``elderly
person'' if the person is 62 years or older. In light of the amendment
made to the definition of ``elderly person'' by the 1992 Act, HUD
cannot treat disabled persons who are not 62 years of age or older as
if they were elderly persons.
It is important to clarify two related points on this issue. Since
any individual who declares, under penalty of perjury, that he or she
is a United States citizen is not required to submit proof of
citizenship, no documentation requirements are imposed upon a person
with disabilities (or anyone else) who is a U.S. citizen. Similarly,
any person with disabilities who (1) is a noncitizen, (2) is 62 years
of age or older or will be 62 years of age by the time he or she is
required to submit evidence of eligible status, and (3) is receiving
HUD assistance on the effective date of this final rule, is exempt from
the rule's requirements to submit evidence of immigration status. This
person only would be required to submit, in addition to the
declaration, a proof of age document. As a result, even though there is
no specific exemption for persons with disabilities under this rule, it
is still possible that a person with disabilities may not have to
submit immigration status documentation because of the rule's own
general exemptions.
2. Persons Other Than Citizens and Certain Elderly Persons Are Not
Exempt From Documentation Requirements
One commenter argued that the statutory provision establishing the
statutory documentation requirements does not apply to applicants
because section 214(d) requires immigration documents to be submitted
by individuals who are, among other things, ``receiving financial
assistance on the date of the enactment of the Housing and Community
Development Act of 1987.'' (As noted in the discussion under section
VII.A. of this preamble, in both the 1988 and 1994 proposed rules, HUD
replaces the term ``date of enactment'' of the 1987 Act with
``effective date of final rule.'')
Since applicants for HUD assistance could not have been ``receiving
financial assistance on February 5, 1988'' (the date of enactment of
the 1987 Act), the commenter contends that applicants do not need to
submit documents verifying citizenship or eligible immigration status
until they actually become recipients. Consequently, this commenter
asked HUD to include in the rule a prohibition against the removal of
any applicant's name from a waiting list based upon a failure to verify
immigration status with the INS.
HUD disagrees with this interpretation. The 1987 Act amended
section 214 to provide that:
If such an individual is not a citizen or national of the United
States, is not 62 years of age or older, and is receiving financial
assistance on the date of the enactment of the Housing and Community
Development Act of 1987, there must be presented either * * * (alien
registration documents or other documents acceptable to HUD). (42
U.S.C. 1436a(d)(2))
HUD has construed this language to mean that only two classes of
individuals are exempt from the immigration documentation requirements:
(1) Those who declare themselves to be U.S. citizens or nationals; and
(2) noncitizens who are or will be 62 years of age by the time they are
required to submit immigration documents, and who were receiving HUD
financial assistance on the effective date of this final rule. This
second category of persons, however, would be required to present proof
of age.
The commenter proposes that HUD establish an additional exemption
for all applicants to assisted housing. Again, under this
interpretation, the documentation requirements would not be triggered
until the applicant becomes a tenant ``receiving financial
assistance.'' HUD believes that there is no legal basis for adopting
this interpretation of the 1987 Act. There is no evidence in the 1987
Act that the documentation requirements of section 214 were intended to
apply only to tenants. To the contrary, the 1987 Act contains other
provisions that support that the documentation requirements were
intended to cover applicants as well. (See, for example, 42 U.S.C.
1436a(d)(4)(A)(ii) and 1436a(d)(4)(B)(ii), which prohibit HUD from
delaying, denying, reducing or terminating an individual's eligibility
for financial assistance pending INS verification or appeal.)
Moreover, in discussing the proposed implementation of the SAVE
verification system under IRCA, Senator Hawkins specifically remarked:
* * * [I]f the applicant is not a U.S. citizen, the State is
required to use the person's alien file or alien registration number
to verify with the Immigration and Naturalization Service the
alien's immigration status * * * (Emphasis added) (at 131 Cong. Rec.
S11415, daily ed. Sept 13, 1985).
Clearly, the Congress intended the SAVE system to be used to verify the
immigration status of applicants to assisted housing, and not to delay
this process until after the applicant became a tenant receiving HUD
assistance. Consequently, the 1994 proposed rule does not revise the
1988 proposed rule's interpretation of this statutory language.
Two commenters urged HUD to consider an alternative interpretation
concerning the elderly exemption, one which would exempt from the
rule's documentation requirements any individual who not only is 62
years of age or older and receiving HUD financial assistance on the
effective date of the final rule, but an individual who is receiving
HUD financial assistance on the effective date of the final rule, and
who will be 62 years of age by the time he or she is required to submit
evidence of eligible status. This revision would provide individuals
with a longer period of time in which to qualify under the elderly
exemption. HUD agrees that this is the preferable statutory
interpretation, and is consistent with Congressional intent concerning
the protections to be provided to persons already receiving assistance
and elderly persons. Accordingly, the 1994 proposed rule contains this
interpretation.
Another commenter on the ``elderly exemption,'' advocated that the
exemption apply to both current tenants of HUD-assisted housing, and
``to future applicants who are elderly.'' Citing from the House
Committee Report on H.R. 4 (H.R. Rep. No. 100-122, 100th Cong., 1st
Sess. 49 (1987)), the commenter contended that Congress meant to
exclude from the rule's documentation requirements all elderly
individuals, and not just those who were receiving financial assistance
on the effective date of HUD's final rule. The commenter quoted from
page 50 of the House Committee Report:
Elderly persons 62 years or older would only have to certify,
and would not have to provide documentation establishing their
immigration status or nationality.
While it is true that the House version of the 1987 Act would have
extended the elderly exemption to all persons 62 years of age or older,
this language was modified prior to passage of the bill. Under section
164(c)(1) of the 1987 Act, as passed (101 Stat. 1861), the Congress
narrowed the exemption to apply only to an individual who is ``* * *
62 years of age or older, and (who) is receiving financial assistance
on the date of the enactment of the Housing and Community Development
Act of 1987.''
As discussed above, HUD construes this language to mean that the
elderly exemption applies only to individuals who are or will be 62
years of age by the time they would be required to submit evidence of
eligible status, and who are receiving HUD financial assistance on the
effective date of the final rule. Accordingly, HUD has not adopted the
suggested modification in the 1994 proposed rule.
3. Submission of Original Documentation
One commenter argued that elderly persons would be unable to
produce original records proving their age in the time period allowed
by the proposed regulations. HUD notes that the 1988 proposed rule did
not provide any time limit for the submission of documents, including
documents establishing an individual's age. With regard to the
documentation that is needed to establish an individual's age (i.e.,
the types of acceptable documents, and whether original documents must
be submitted or whether some alternative procedure is permissible), the
1994 proposed rule does not prescribe acceptable documentation.
Responsible entities will continue to follow existing procedures used
in the various assisted housing programs to document age (i.e., to
document that a person is an ``elderly person''). HUD also notes that
most individuals who are 62 years of age or older will have readily
available the documents establishing age since those documents are
needed to obtain social security benefits, and other benefits provided
by communities (e.g., discounts for senior citizens).
Several commenters urged HUD to eliminate the requirement in the
1988 proposed rule that applicants and tenants must submit original
immigration documents for verification with the INS. These commenters
asserted that the proposed rule failed to consider the burden this
requirement would impose upon individuals who had to surrender their
INS documents, or upon HAs that would have to implement costly
procedures to keep track of these documents. As an alternative, these
commenters suggested that individuals be permitted to submit certified
copies of INS documents, with original INS documents required only when
the responsible entity has a reasonable suspicion of fraud or
misrepresentation.
HUD has consulted with the INS about whether certified immigration
documents, rather than original INS documents, are acceptable for SAVE
verification. The INS has indicated to HUD that ``* * * only originals
of documents denoting immigration status'' may be used to establish
eligibility through the SAVE system. Consequently, HUD does not have
the discretion to modify this provision of the rule. However, it should
be noted that under no circumstance should a responsible entity retain
in its possession any original INS documents. The responsible entity
should review the original INS document, make photocopies of the
document for its own records, and return the original document to the
applicant or tenant as quickly as possible. This restriction on the
retention of original INS documents by the responsible entity is
included in the 1994 proposed rule.
4. When Documentation Is To Be Submitted
Two commenters noted that the 1988 proposed rule did not contain
time limits for applicants and tenants to submit their immigration
documents. The commenters stated that, to the extent immigration
documents must be submitted within the time period for the general
recertification of eligibility process, it would be ``too brief a
period.''
HUD agrees with the suggestion that owners and housing authorities
(HAs) must provide notice of the time period for submission of
immigration documents. Section VI.A.3 of this preamble describes the
time for submission of documents as provided in the 1994 proposed rule.
The 1994 proposed rule also requires owners and HAs to inform
applicants and tenants of this time period in the notice to applicants
and tenants that advises them that the provision of financial
assistance or continued financial assistance is contingent upon the
submission and verification of immigration documents.
Another commenter asked that the rule clarify that the responsible
entity's notice to tenants and applicants, advising that financial
assistance is contingent upon the submission and verification of
immigration documents, be in writing. HUD intended that this notice be
in writing, and the 1994 proposed rule makes this clarification.
Several commenters asked HUD to include in this notice, as well as
the notice informing ineligible applicants and tenants about the denial
or termination of assistance, of the existence of, and the procedures
for obtaining relief under, the ``preservation of families'' provision.
HUD agrees that both of these notices should inform applicants and
tenants that they may qualify for relief under the preservation of
families provision, and indicate the criteria and procedures for
obtaining such relief, and the 1994 proposed rule adopts this
requirement for notices.
5. Removal of 1988 ``Reason to Suspect'' Provisions
A number of commenters expressed concern that the 1988 proposed
rule authorized an owner or HA to initiate termination procedures
whenever there is evidence of conflicting or inconsistent information
regarding an individual's identity or claimed citizenship status.
Several commenters claimed that the 1988 rule's ``reason to suspect''
provision invites discrimination against anyone who ``appears
foreign,'' and they urged that sanctions be imposed upon responsible
entities that are found to have discriminated on this basis.
The 1994 proposed rule removes this provision. Any false statement
or fraudulent evidence concerning eligibility on the basis of eligible
citizenship or immigration status should be handled in the same manner
that an owner or HA addresses false statements or fraudulent evidence
with respect to other aspects of eligibility. To the extent possible,
eligible citizenship or immigration status should be treated the same
as other factors that are taken into consideration in determining a
person's eligibility for assistance or continued assistance. Except
where mandated by statute (notice requirements, verification
procedures, hearing requirements, special relief provisions), the
proposed rule directs the responsible entity to rely on existing
procedures that are in place and applicable to other eligibility
factors.
6. Privacy Issues
One commenter asked HUD to revise the provision in the 1988
proposed rule that granted authority to HUD to share with Federal,
State or local government agencies any information that it obtains
during the verification process. The commenter stated that information
concerning citizenship or eligible immigration status obtained by HAs
and project owners during the verification process should not be used
for any purpose other than to determine eligibility for assistance.
Information contained in the HUD systems of records is subject to
the provisions of the Privacy Act of 1974 (5 U.S.C. 552a). Information
gathered by HAs or private owners is not. However, any information
gathered by these entities could be subject to State or local privacy
laws. The 1988 proposed rule purported to list all the sources to which
the information could be released and the purposes for which the
information could be used. HUD has concluded that a rule cannot
anticipate all the possibilities in which such evidence may be
compelled to be released by HUD or the project owner or HA under
applicable law, and the 1994 proposed rule removes the list of
circumstances in which evidence of eligible status may be released.
(Section VI.A.7 of this preamble describes how the 1994 proposed rule
addresses this issue.)
With respect to the privacy issue, HUD has determined that the
project owner, like HUD, should bear no obligation to control what an
agency (to which the project owner or HUD was required to release
evidence of eligible immigration status) does with this evidence.
Therefore, the 1994 proposed rule provides that neither HUD nor the
responsible entity is responsible for the further use or transmission
of the information released in accordance to applicable law.
7. Security of INS Data Base
A number of commenters mentioned that there is a serious potential
for misuse of the INS data base, particularly when the data base is
being accessed by private entities. They suggested that HUD include
``enhanced protections'' in the rule to safeguard the confidentiality
of information obtained from the data base. Similarly, another
commenter urged that authorized names or approval numbers for INS
document verification be provided to owners and HAs.
With regard to the first comment, HUD points out that the INS
already has protections built into the SAVE system to maintain the
confidentiality of system information, particularly when information is
being accessed by private individuals. In addition, HUD will provide
the INS with the names and approval numbers of project owners or HA
representatives who are authorized to access the SAVE system. The
project owners and HA representatives may use information obtained from
the INS and the applicant only in accordance with the verification
consent form.
D. Documents of Eligible Status
Several commenters advocated recognition of an immigration judge's
decision granting a suspension of deportation as evidence of lawful
admission for permanent residence. Their reasoning was that the Form I-
551, which ordinarily evidences lawful admission for permanent
residence, is issued after the decision and backdated to the date of
the decision but may not be available when an applicant or tenant needs
to establish eligible immigration status.
The INS has informed HUD that the decision of an immigration judge
to suspend deportation is not final when issued. The INS may review
such a decision and reverse it. If the INS decides not to reverse the
decision, or is unable to act within the required review period, a Form
I-551 is issued and the decision becomes final. Therefore, while a copy
of the decision itself is not evidence of final INS action conferring
eligible status, the Form I-551 is. The 1994 proposed rule does not
include a decision to suspend deportation in the list of acceptable
documentation of eligible immigration status, since it is not evidence
of final INS action. However, if an applicant or tenant has only the
judge's order suspending deportation at the time of application or
recertification of income, he or she can appeal to the INS to obtain a
final determination of immigration status and a Form I-551.
The Department of Agriculture contacted HUD about its inclusion of
Form I-688A in the list of documents evidencing eligible immigration
status. Since the housing programs operated by the Department of
Agriculture are to follow the same strictures concerning eligible
noncitizens (with the exception of farm workers' housing) as apply to
HUD programs, the inquiry was whether Form I-688A is evidence of a
grant of eligible status under HUD programs, or whether it is merely
evidence that an individual has applied for eligible status. After
consulting with the INS, HUD determined that it is the latter.
Therefore, the I-688A has been removed from the list of documents that
evidence eligible immigration status in the 1994 proposed rule.
In the 1994 proposed rule, other changes were made to the list of
immigration documents that appeared in the 1988 proposed rule. These
changes were made in response to a 1993 letter from the INS, which
provided information concerning the current status of various
identification documents (i.e., current form numbers, the annotation on
cards, etc.), and HUD will further consult the INS on applicable
immigration documents before issuance of the final rule.
E. Verification of Eligible Immigration Status
1. General
One commenter asked HUD to specifically state in the rule that
eligibility determinations by HAs may not be relied upon by third
persons as evidence of citizenship or immigration status. HUD has not
included the requested language in this 1994 proposed rule because HUD
has no authority to either require or prohibit persons to rely on HA
eligibility determinations as evidence of citizenship or eligible
immigration status.
2. Verification Based Solely on INS Documents
Several commenters objected to the requirement in the 1988 proposed
rule that the responsible entity obtain from the applicant or tenant
either an INS document that contains a photograph, or an additional
document with a photograph, to ensure the alien's identity. These
commenters noted that neither IRCA nor the 1987 Housing Act requires an
individual to submit a photograph when the INS document submitted does
not contain one.
The 1994 proposed rule requires only the submission of the INS
immigration document in whatever form that document may be in (i.e.,
whether it contains a photograph or does not contain a photograph).
3. No Denial or Termination of Assistance Pending Verification Process
Three commenters asserted that the 1988 proposed rule would have
implemented section 121 of IRCA ``* * * in a manner that violates many
of section 121's protections for the public, and without a well-
developed plan with the INS for processing verification requests and
for reimbursement.'' The commenters expressed concern that INS records
may be unreliable, verification could take several months and produce
erroneous results, and the consequences would be that eligible persons
would have assistance denied or terminated.
The 1994 proposed rule closely tracks the statutory protections
found in 42 U.S.C. 1436a (d)(4)(A)(ii) and (d)(4)(B)(ii). These
statutory sections require HUD to provide a ``reasonable opportunity''
to submit documents, and to appeal to the INS. The 1994 proposed rule
requires that a responsible entity not deny admission to an otherwise
eligible applicant to a covered program solely on the basis of
immigration status, when such assistance is available, or terminate
assistance to a tenant, during the ``reasonable opportunity'' to submit
immigration documents, or pending the INS verification process, or the
INS appeal. Under this expansive interpretation, an applicant or tenant
would not be penalized for any delay in verifying eligible immigration
status, irrespective of the cause for the delay.
However, for applicants, the protections against ``delay'' in
providing assistance only extend through the INS appeal process. The
statute does not provide protection for an applicant against delay in
providing assistance during the pendency of the informal hearing
process. While the statute provides that during the pendency of the
informal hearing process, assistance may not be denied or terminated
(42 U.S.C. 1436a(d)(6)(D)), the statute drops reference to ``delay.''
Three commenters noted that the proposed rule failed to establish a
timetable for owners to submit documents to the INS for verification.
They contended that delays in the submission of immigration documents
to the INS could jeopardize a person's eligibility for assistance or
continued assistance, and thereby violate the statutory mandate that
assistance not be delayed, denied, or terminated as a result of the
verification process. These commenters urged HUD to include in the rule
a timetable for the submission and processing of documentation.
The 1994 proposed rule adopts this suggestion although protections
provided by 42 U.S.C. 1436a (d)(4)(A)(ii) and (d)(4)(B)(ii), as
discussed above and incorporated in the rule, renders the issue largely
moot. As discussed above, a responsible entity must admit an otherwise
eligible applicant to an available unit during the period provided to
submit immigration documents, or pending the INS verification, or INS
appeal process. Thus, even if an owner delays the submission to the INS
of an applicant's immigration documents, the delay will not affect the
applicant's ability to obtain assistance if the applicant is otherwise
eligible, and if assistance is available. Nevertheless, the 1994
proposed rule requires that a responsible entity submit to the INS no
later than 10 days following the date of submission copies of
immigration documents that it obtains from applicants and tenants.
HUD has refrained from establishing a specific time period for
processing immigration documents, because this can vary greatly
depending upon the circumstances. However, for the same reasons
discussed above, the failure to establish a processing deadline will
not affect a person's eligibility for assistance or continued
assistance if the person is otherwise eligible for assistance.
4. Purpose of Secondary Verification
One commenter asked whether secondary verification would have to be
instituted whenever the primary verification process is unable to
confirm eligible immigration status, including instances where the
primary system verifies ineligible status.
Assistance to an applicant or tenant may never be denied or
terminated solely on the basis of the primary verification system's
determination of ineligibility. The 1994 proposed rule provides that a
responsible entity must institute secondary verification whenever
primary verification is either unable to confirm eligible status, or
when it verifies ineligible immigration status. The only instance in
which primary verification would be used without the benefit of
secondary verification is when the primary system verifies eligible
immigration status.
A number of commenters asserted that the 1988 proposed rule
improperly characterized the INS secondary verification process as an
appeal. They cited the General Accounting Office's October 1987 Report
on SAVE, in which the INS stated that ``no denial of benefits may be
based solely on primary verification.'' These commenters contend that
secondary verification is not an appeal, but a necessary step because
of inadequacies of the INS primary verification system.
HUD has consulted with the INS concerning IRCA's reference to an
appeals process, and the INS agrees with the commenters that secondary
verification may not substitute for the appeals process under 42 U.S.C.
1436a(d)(4)(A)(i). Further, the INS confirmed that secondary
verification is a necessary step to the denial or termination of
assistance to an individual, and that the INS appeals process cannot be
initiated until after secondary verification establishes that the
individual is not an eligible alien. The 1994 proposed rule therefore
removes the reference to an ``appeal'' that accompanied the ``secondary
verification'' heading in the applicable regulatory sections.
5. Appealing Secondary Verification of Ineligible Status
The 1994 proposed rule includes a discussion of the procedures for
initiating the INS appeal once secondary verification establishes
ineligible status. Under these procedures, the responsible entity must
notify the applicant or tenant of the INS determination of
ineligibility, and of the individual's right to appeal to the INS the
verification decision, to submit additional documentation or a written
explanation in support of the appeal, or to request an informal
hearing. The responsible entity must submit photocopies of these
documents to the appropriate INS district director, together with a
copy of INS Form G-845S (used to process the secondary verification
request) and a cover letter identifying the package as an appeal of the
INS determination of ineligibility. The INS will issue a decision on
the appeal within 30 days from the date of
its receipt of the documents. If the INS is unable to respond within
this time period, it will notify the applicant or tenant and indicate
the reasons for the delay. Pending the outcome of the INS appeal, an
otherwise eligible applicant must be provided with housing assistance,
if such assistance is available, and assistance to a tenant may not be
interrupted.
6. The SAVE System
A few commenters claimed that the 1988 proposed rule's provisions
on the SAVE verification procedures seemed premature, since it appeared
that the necessary coordination with the INS had not yet been
completed. They asked HUD to make clear that a rule would not take
effect until the SAVE process is fully operational.
HUD has been working closely with the INS to implement the SAVE
system for its covered programs, and fully expects to have all of the
necessary coordination completed before the effective date of a final
rule implementing section 214. In addition, HUD plans a delayed
effective date for its final rule. The delay will provide for a period
that is sufficient for project owners and HAs to undergo training on
the SAVE system and become proficient in its use. As a result, HUD
fully expects all necessary coordination with the INS on the use of the
SAVE system to be completed before the effective date of the final rule
implementing section 214.
Other commenters claimed that the 1988 proposed rule failed to
provide the detailed information necessary to implement SAVE such as
how requests for verification would be transmitted to the INS, who
would bear responsibility for lost INS documents, or what line item of
the ``statement of profit or loss'' in HUD Form 92410 should include
the relevant administrative costs.
The procedures for the SAVE system are established by the INS, and
HUD is required to use these procedures. Therefore, elaboration of the
SAVE procedures is not a matter to be established by HUD through
rulemaking. The INS has a handbook governing the procedure, and HUD
will develop supplementary instructions that will assist responsible
entities in following the SAVE procedures. HUD expects to issue
detailed guidance well in advance of the effective date of a final
rule.
F. Reasonable Opportunity to Establish Eligible Status--No Denial or
Termination of Assistance during Reasonable Opportunity Period
Several commenters strongly objected to HUD's interpretation in the
1988 proposed rule of 42 U.S.C. 1436a(d)(4)(A)(ii) and (d)(4)(B)(ii).
These statutory sections state that HUD must provide individuals with
``a reasonable opportunity'' to submit immigration documents for
verification with the INS, and that pending this period HUD may not
``delay, deny, reduce, or terminate (an) individual's eligibility for
financial assistance on the basis of the individual's immigration
status.''
In the 1988 proposed rule, HUD maintained that so long as the
responsible entity continued to process an applicant for purposes of
establishing eligibility for financial assistance, and placed the
applicant's name on a waiting list once eligibility (aside from
eligible immigration status) was established, it was complying with the
requirements of IRCA. HUD reasoned that under this procedure the
applicant's ``eligibility for financial assistance'' would not be
delayed pending the secondary verification, even though assistance
would not actually be provided until eligible immigration status was
verified with the INS.
The commenters argued that delaying assistance because of
immigration verification violates IRCA's prohibition against delaying
assistance during the reasonable opportunity to submit immigration
documents, or pending the INS verification or INS appeal. They further
claimed that the distinction drawn by HUD in the preamble to the 1988
proposed rule between delaying eligibility and delaying financial
assistance violates IRCA as soon as an applicant reaches the top of the
waiting list. The commenters instead advocated admitting applicants
based upon their written declarations of eligibility, and later
evicting them if secondary verification establishes that the tenant is
an ineligible alien.
As discussed under section VII.E.3 of this preamble, HUD has
reconsidered its interpretation of 42 U.S.C. 1436a(d)(4)(A)(ii) and
(d)(4)(B)(ii). The 1994 proposed rule provides that an otherwise
eligible applicant must be admitted to a housing assistance program, if
such assistance is available, during the reasonable opportunity to
submit immigration documents, pending the INS primary or secondary
verification of immigration status, or pending the conclusions of the
INS appeal process. Again, however, as discussed earlier in this
preamble, the statute does not provide identical protection to an
applicant during the informal hearing process. Although assistance may
not be denied pending the conclusion of the informal hearing process,
assistance to an applicant may be delayed.
With regard to tenants, the 1994 proposed rule provides assistance
may not be terminated during the reasonable opportunity to submit
immigration documents, pending the INS primary or secondary
verification, or pending the conclusion of the INS appeal process, or
pending the conclusion of the informal hearing process.
G. Proration of Assistance Permitted
Several commenters disagreed with HUD's analysis in the preamble to
the 1988 proposed rule (53 FR 41046-47) that IRCA's prohibitions
against delaying, denying, reducing or terminating assistance pending
verification also preclude the proration of assistance (i.e.,
permitting a family with ineligible family members to continue to
receive assistance, based only on the eligible members). The commenters
insisted that this language was intended solely to protect individuals
against the loss of benefits during INS verification of immigration
status, and should not be used by HUD to prohibit the proration of
assistance.
As discussed earlier in this preamble, HUD has revised its position
on the issue of proration of assistance. HUD agrees with the commenters
that the statutory language is insufficient to support the prohibition
of proration of assistance. The 1994 proposed rule provides for
proration of assistance for applicants and tenants. Again, HUD
specifically requests comment on the issue of proration of assistance,
on the formulas for prorating assistance as set forth in the proposed
rule, and welcomes suggestions and recommendations on how these
formulas could be improved or made simpler.
H. Changing Units or Housing Programs
One commenter asked HUD to revise the provision in the 1988
proposed rule that would require a responsible entity to verify a
tenant's immigration status as a condition of transferring from one
unit to another, or from one housing assistance program to another. The
commenter stated that there may be instances in which the tenant family
has to transfer through no fault of its own during the term of the
lease, and HAs should have the discretion to continue assistance under
such circumstances for a minimum of one year.
HUD agrees that a tenant who transfers from one unit to another
within the same housing project should not be required to verify
eligible immigration status since that tenant would be merely seeking
to continue an existing subsidy, and the 1994 proposed rule adopts this
change. In the case of public housing, even a transfer from one project
to another would be continuation of the existing subsidy and therefore
not involve an ``admission,'' which would require verification of
eligible immigration status, unless the move was from the jurisdiction
of one HA to another HA.
With regard to transfers from one subsidy program to another or
from one housing project to another, immigration status is verified
when HUD regulations require that the tenant be treated like any other
applicant attempting to receive a new form of housing assistance. HUD's
position is not dependent upon whether the change is voluntary or
involuntary, but rather if the change renders the tenant a new
applicant under HUD's regulations. For example, if a family moved from
one section 236 project to another, the move would be considered a new
admission, because each project is separately owned and operated and
the family would be required to satisfy admission criteria of the
management of the project to which it was moving. Therefore, the family
would be asked to submit information about citizenship or eligible
immigration status along with income eligibility information.
I. Hearings
1. Administrative Burden
One commenter claimed that the hearing requirements contained in
the 1988 proposed rule would place a tremendous administrative burden
upon HAs, and would result in overloading its existing hearing officers
with potentially ``hundreds of ineligible alien determinations.'' The
commenter maintained that this would delay proceedings against truly
undesirable residents, such as those involved in drug transactions.
Another commenter suggested that HAs should respond to the increased
administrative burden by delaying the ineligibility determination
hearings until more serious cases are heard, or by developing some
other priority system.
HUD believes that these commenters have overestimated the number of
hearings that will be requested by persons as a result of ineligibility
determinations under this rule. As noted earlier in this preamble, HUD
believes that the majority of applicants and tenants will be citizens
and assert citizenship. Additionally, HUD expects that it is unlikely
that a noncitizen who has been confirmed by the INS verification system
and appeals process to be ineligible for assistance will go to the
trouble of requesting a hearing to contest the final INS decision.
Consequently, HUD expects the administrative burden imposed upon HAs
and project owners as a result of providing these hearings to be
minimal.
2. Expansion of Procedural Protections in Hearing Process
One commenter questioned the legal sufficiency of the 1988 proposed
rule's informal hearings on the denial and termination of assistance.
HUD believes that the hearing process provided under the 1988
proposed rule was legally sufficient, and complied with the
requirements of the 1987 Act. The 1988 proposed rule met the minimum
statutory requirements for a hearing. Under 42 U.S.C. 1436a(d)(6), HUD
is required to make available to an individual who has been determined
to be an ineligible noncitizen ``* * * the applicable fair hearing
process.'' The section lists the minimum statutory criteria needed to
comport with due process requirements, which include: (1) Written
notice of the determination to deny or terminate benefits, and of the
opportunity for a hearing to discuss the determination; (2) a hearing
before an impartial hearing officer; and (3) written notification by
the responsible entity of the decision of the hearing officer.
The 1994 proposed rule adds certain other due process components to
the informal hearing process. These additional components are those
provided by HAs and project owners for termination of tenancy (e.g.,
see 24 CFR 905.340, and 24 CFR 966.56). HUD believes that the type of
hearing provided for termination of tenancy also should be available to
applicants who are denied assistance on the basis of ineligible
immigration status.
3. Timeframes for Requesting Hearings and Issuing Decisions
Four commenters objected to the 1988 proposed rule's 14-day period
for requesting a hearing, claiming that the period is too brief since
it would run from the date on the notice, and not from the date of
receipt. They urged HUD instead to grant a hearing whenever reasonable
cause is shown for a belated hearing request, or whenever there is only
nominal prejudice to the responsible entity. Another commenter asked
HUD to extend the period for requesting a hearing from 14 to 30 days.
While HUD has not entirely adopted either of these suggestions in
the 1994 proposed rule, the 1994 proposed rule provides that a hearing
must be requested within 14 days of the date of mailing the written
notice of ineligibility or the INS appeals decisions (established by
the date of postmark) or the date of personal delivery of the notice
(established by date of actual delivery) to the applicant or tenant. In
addition, the 1994 proposed rule requires the responsible entity to
grant an extension for requesting a hearing upon good cause shown by
the applicant or tenant.
Other commenters objected to the requirement that responsible
entities must provide an applicant or tenant with a written final
decision regarding the decision to deny or terminate benefits within
five days of the informal hearing. They claimed that this five-day
limit does not provide a responsible entity with sufficient time to
investigate and verify additional documentation that may have been
submitted by the applicant or tenant at the hearing. HUD agrees with
these commenters, and the 1994 proposed rule provides that the
responsible entity must provide its written decision within 14 days of
the hearing date.
4. Hearing Officers
Several commenters expressed concern about the qualifications of
hearing officers under the 1988 proposed rule. The commenters cited the
United States Supreme Court's decisions in Schweiker v. McClure, 456
U.S. 188 (1982) and Matthews v. Eldredge, 424 U.S. 319 (1976) in
support of their claims that the requirements for hearing offices
contained in the 1988 proposed rule are constitutionally deficient.
Specifically, a number of commenters asserted that under the
standards established in McClure, a project owner who wants his or her
employee to qualify as a hearing officer must first ensure that the
employee has knowledge of the SAVE program, immigration law, and
relevant program information.
HUD disagrees with this interpretation of the McClure case. In
McClure, the Supreme Court focused on the second of the three factors
cited in Matthews, which considers the risk of an erroneous decision
and the probable value, if any, of additional or substitute due process
safeguards. The Court then noted that in that case the Department of
Health and Human Services by regulation required its carriers to select
as a hearing officer:
[A]n attorney or other qualified individual with the ability to
conduct formal hearings and with a general understanding of medical
matters and terminology. The hearing officer must have a thorough
knowledge of the Medicare program and the statutory authority and
regulations upon which it is based, as well as rulings, policy
statements, and general instructions pertinent to the Medicare
Bureau.'' (Id. at 1188).
The Supreme Court found that because the HHS regulation ensured the
qualifications of hearing officers, the record did not support the
appellee's claims that additional due process safeguards would reduce
the risk of erroneous deprivation of benefits.
However, it is inaccurate to point to the HHS regulatory standards
on the qualification of Medicaid hearing officers as establishing the
minimum constitutional standards needed to comply with due process.
Moreover, contrary to the suggestion of commenters, it is unnecessary
for HUD to require under its rule implementing section 214 that hearing
officers have substantive knowledge of immigration law. The INS has
undisputed expertise in this area, and under the rule any applicant or
tenant who is faced with the denial or termination of benefits because
of ineligible immigration status is guaranteed an opportunity to
directly appeal to the INS the ineligibility determination. As a
result, it would be duplicative and unnecessary to require hearing
officers to have in-depth knowledge of immigration law.
Two commenters contended that the regulatory sections in the 1988
proposed rule which permitted a hearing to be held before an officer or
employee of the owner so long as he or she did not make the initial
decision of ineligibility, violates the 1987 Act's requirement of an
impartial hearing officer. Another commenter claimed that the informal
hearing established in the 1988 proposed rule failed to satisfy
statutory and constitutional requirements, since both the initial
decision and the decision following the hearing are issued by the
owner, and not the owner's designated representative.
HUD disagrees with these comments. Both the 1988 and 1994 proposed
rules provide that an individual who has received a letter denying or
terminating assistance may request an informal hearing at which he or
she can meet with any person designated by the owner * * * other than a
person who made or approved the decision under review, or other than a
person who is a subordinate of the person who made or approved the
decision under review. HUD believes that this language comports with
due process requirements for impartiality and, as a result, the
provision remains unchanged in the 1994 proposed rule.
Another commenter suggested that the rule provide for hearing
officers to be bilingual, or to provide the applicant or tenant with
interpreters when circumstances require.
The 1994 proposed rule does not require hearing officers to be
bilingual. With respect to interpreters, the 1994 proposed rule
provides that an applicant or tenant is entitled to have an interpreter
present at the denial or termination hearing, at his or her own
expense, or at the owner's expense, as may be agreed upon by the
parties. The owner may already have in his employ a person who speaks
the language of the applicant or tenant, and is willing to have this
person serve as an interpreter. Alternatively, the applicant or tenant
may prefer to select their own interpreter.
5. Record of Hearing
Two commenters claimed that it was essential to the fair hearing
procedure that the responsible entity maintain a record of the hearing
for judicial review.
The informal hearing process does not require that a record be
generated and maintained, and HUD declines to impose such requirement
in this rule. The 1994 proposed rule provides for the responsible
entity to allow an audiotape of the hearing, but no transcript is
required to be made that would meet court standards and facilitate
judicial review. In addition, and in accordance with HUD practice in
the administration of many of its programs, the 1994 proposed rule
requires that documents used by the responsible entity in processing an
application or verification of eligibility of a tenant be maintained
for a period of time.
J. Notices
A number of commenters requested that the notice of denial or
termination of assistance include a brief statement of the reasons for
the denial or termination, and an explanation of any documents found to
be missing or inadequate. In addition, four commenters asked that the
rule be revised to require the responsible entity to inform applicants
and tenants not only of the right to obtain a hearing, but also of the
procedures for initiating the hearing and the INS appeal. HUD agrees
with both of these suggestions and has adopted these changes in the
1994 proposed rule.
Other commenters asked that all notices issued under the rule to
applicants and tenants be required to be bilingual or multilingual, as
necessary. As discussed in section VI.A.12 of this preamble, the 1994
proposed rule imposes a duty on the responsible entity to provide,
where feasible, documents or notices in a language that is understood
by the applicant or tenant if the applicant or tenant is not proficient
in English.
K. Removal of Resumption of Assistance and Retention of Assistance
Provisions
Four commenters claimed that HUD's position on the resumption of
assistance to tenants after required evidence is submitted is unduly
harsh. The commenters referred to the preamble of the 1988 proposed
rule, in which HUD stated that after financial assistance for a tenant
is terminated, assistance would not resume unless all of the required
evidence was submitted by the tenant to the owner, ``* * * and
resumption of assistance is authorized in accordance with HUD
requirements.'' (HUD indicated in the 1988 proposed rule that these
requirements would be described in greater detail in program
handbooks.) The commenters maintained that assistance should always be
restored to an eligible family when necessary to prevent homelessness,
or when a delay in the submission of documentation is caused by
circumstances beyond the control of the tenant.
One commenter stated that resuming assistance to a family after
assistance has been terminated can be programmatically burdensome,
since HA units are typically fully leased and there are waiting lists.
This commenter urged HUD to provide HAs, in advance of the
implementation of the final rule, with the handbook requirements on the
resumption of assistance so that necessary procedures can be developed.
Another commenter objected to HUD's statement in the preamble of
the rule that program handbooks would contain the requirements
governing resumption of assistance. The commenter claimed that these
requirements should be published in the final rule and not in a program
handbook.
On further consideration of this issue, HUD has determined that
once assistance to a tenant has been terminated for ineligible
immigration status, the tenant should be treated the same as if the
assistance were terminated for any other reason. No special procedure
needs to be developed for purposes of this rule.
Similarly, the 1988 regulatory provision concerning ``Retention of
Financial Assistance'' has been removed. This provision prohibited a
responsible entity from receiving or retaining financial assistance
paid for the benefit of a tenant admitted for participation in a
program when required evidence of eligible status has not been
submitted or verified by the INS in accordance with the regulations.
This prohibition applies whether a responsible entity admitted a person
who has ineligible immigration status, or who is ineligible on some
other basis (e.g., the person's income makes them ineligible for
assistance).
L. Extensions; Requirement to Grant Upon Good Cause; and Grant or
Denial to be in Writing
Numerous comments were received on the 1988 proposed rule's
provisions on the extension of time for tenants to submit immigration
documents. (See section VII.F of this preamble concerning reasonable
opportunity to submit documents of eligible status by both applicants
and tenants.)
One commenter stated that while the 1988 proposed rule permitted a
tenant under certain circumstances to obtain an extension of time for
the submission of immigration documents, the 1988 rule failed to
consider the financial burden this requirement imposes upon HAs. In
order to implement this provision, the commenter claimed that housing
authorities would have to develop systems to record extensions, and to
monitor tenant compliance, and the rule should provide reimbursement
for these expenses.
While HUD agrees that recording tenant extensions and monitoring
compliance may impose a certain financial cost to responsible entities,
HUD believes that this cost will be minimal. Again, HUD believes that
most tenants will have eligible status, and tenants who are eligible
for assistance will not need to request an extension of time to submit
immigration documents, but will have the documents readily available.
As discussed under section VII.F of this preamble, the 1994 proposed
rule provides that an extension be granted to applicants and tenants
upon good cause shown.
One commenter argued that in the 1988 proposed rule HUD unfairly
required a responsible entity to document in writing the decision to
grant an extension, but failed to impose a similar requirement on the
decision to deny an extension. The commenter claimed that the same
standards that apply to the decision to grant an extension should also
apply to the denial of an extension.
The 1994 proposed rule provides for the granting or denial of an
extension to be in writing, and if the extension is denied, to state
the reasons for the denial.
M. Preservation of Mixed Families and Other Families
1. Proration of Assistance
The preservation of families provision in the 1994 proposed rule
includes proration of assistance, as discussed earlier in this
preamble. Proration of assistance is available to a mixed family (a
family with members with eligible citizenship/immigration status, and
those without eligible immigration status), other than a family
receiving continued assistance or other than a family for which
termination of assistance is temporarily deferred.
2. Continued Assistance and Deferral of Termination of Assistance--
Generally
Section 1436a(c)(1) (42 U.S.C. 1436a(c)(1)) provides that if
assistance is to be terminated to a family that was receiving
assistance when the 1987 Act was enacted, after a final finding of
ineligibility, special relief may be provided under certain
circumstances:
[T]he public housing agency or other local governmental entity
involved (in the case of public housing or assistance under section
8 of the United States Housing Act of 1937) or the Secretary of
Housing and Urban Development (in the case of any other financial
assistance) may, in its discretion, take one of the following
actions:
(A) Permit the continued provision of financial assistance, if
necessary to avoid the division of a family in which the head of
household or spouse is a citizen of the United States, a national of
the United States, or an alien resident of the United States
described in [section 1436a(a)(1)-(6)]. For purposes of this
paragraph, the term ``family'' means a head of household, any
spouse, any parents of the head of household, any parents of the
spouse, and any children of the head of household or spouse.
(B) Defer the termination of financial assistance, if necessary
to permit the orderly transition of the individual and any family
members involved to other affordable housing. Any deferral under
this subparagraph shall be for a 6-month period and may be renewed
by the public housing agency or other entity involved for an
aggregate period of 3 years. At the beginning of each deferral
period, the public housing agency or other entity involved shall
inform the individual and the family members of their ineligibility
for financial assistance and offer them other assistance in finding
other affordable housing.
With respect to continued assistance, these provisions require a
project owner (including a mortgagee) to consider permitting a family
to continue to receive assistance in either of two situations. If the
head of household or spouse is a citizen or national, or has eligible
immigration status, and continued assistance is necessary to avoid
division of the family, the assistance is to be continued indefinitely.
Deferral of termination of assistance is available to a mixed
family that qualifies for prorated assistance (and does not qualify for
continued assistance) but decides not to accept prorated assistance,
and the responsible entity allows the family time to find other
suitable housing. If granted, the deferral period shall be for an
initial period of six months. The deferral may be renewed for
additional periods so long as the total period does not exceed three
years.
3. Eligibility for These Forms of Relief
Although the language of the statute would only have afforded
relief to families receiving assistance on February 5, 1988, the 1994
proposed rule provides, as did the 1988 proposed rule, that such relief
will be afforded to families receiving assistance at the time the
restrictions on immigration status are imposed. Since the restrictions
are not imposed until the effective date of the final rule, the 1994
proposed rule uses the effective date of the final rule as the critical
date for eligibility for these forms of special relief.
4. Decision to Provide Continued Assistance
a. Project owner discretion. Several commenters objected to the
discretion given project owners under the 1988 proposed rule to
determine whether a family containing at least one ineligible person
could continue to receive assistance. They stated that the statute
authorizes HUD to exercise this discretion, not a private owner. The
commenters expressed concern that private owners would abuse this
discretion, resulting in increased evictions, divisions of families,
and homelessness.
The 1994 proposed rule provides that if the qualifying conditions
are found to exist, the project owner must provide continued assistance
to a family.
A few commenters objected to the provision of the 1988 proposed
rule that permitted project owners to deny special relief to a tenant
who is receiving ``only minimal financial assistance'' if the project
owner determines that the tenant could afford to continue occupancy
without assistance. The commenters stated that this provision is not
authorized by the statute, and that decisions about minimal assistance
and affordability are subjective and must be made by the tenant rather
than the project owner. The 1994 proposed rule does not contain this
provision.
b. HA Discretion. Similar to the concern expressed about the
likelihood of a project owner not granting continued assistance when
the qualifying conditions are satisfied, was the concern expressed by
three commenters that the 1988 proposed rule authorized HAs to not even
consider whether to provide continued assistance to tenants in
occupancy. These commenters stated that implicit in the statutory
authority given to HAs to grant this type of relief to families is the
duty to consider it.
Unlike the statutory language with respect to programs administered
by project owners, which gives the discretion to provide special relief
to HUD, the language applicable to HAs grants the discretion directly
to the HAs. The 1994 proposed rule requires HAs to establish a policy
and the criteria to be followed in determining whether to grant a
family this type of assistance. The rule notes that the statute
establishes certain criteria applicable to continued assistance and
this criteria must be included in the HA's policy guidance.
c. Persons Eligible for Continued Assistance. A number of
commenters took issue with the limit on the type of family to whom
continued assistance is made available. The statute, however,
prescribes the definition of the ``family group'' that is to be
preserved: Head of household, any spouse, any parents of the head of
household, any parents of the spouse, and any children of the head of
household or spouse. The list has been carefully drawn to include not
only common children of the head of household and spouse but also any
other children either of them may have. Other relatives not having the
prescribed relationship to the head of household or spouse (such as an
aunt or uncle) who may have been living in the household and who have
eligible status may be just as integral members of the family, but the
Congress has not included them in the list of persons to be protected.
5. Deferral of Termination of Assistance
a. Discretion to Provide this Type of Relief. The statute permits
HUD (in the case of project owners) or the HA to defer termination of
assistance in certain circumstances. For project owners, the 1994
proposed rule requires project owners to grant this type of relief if a
family meets the qualifying conditions. For HAs, the 1994 proposed rule
permits HAs to determine whether this type of relief will be provided,
but requires the HA, in establishing its standards, to be guided by the
standards set forth in the rule implementing Section 214.
b. Length of the Deferral Period. The statute also requires that
the length of time of any deferral must be six months. The statute
provides that deferrals may be renewed to total as long as 36 months.
Commenters objected to the 1988 proposed rule's provisions that merely
restated these periods. One commenter stated that 36 months exceeded a
reasonable period, arguing in favor of a six month limit, and that a
long deferral period unfairly diverts Federal housing assistance from
eligible applicants. The other objector stated that an HA should have
the discretion to renew deferrals for 12-month periods, to coincide
with the annual recertification date.
The 1994 proposed rule, similar to the 1988 proposed rule,
provides, consistent with Section 214, for the possibility of allowing
subsequent deferrals and that these deferral periods may aggregate to
as long a time as 36 months. Each deferral is to be based on an
examination of the ability of the family to find alternative housing.
Since some housing markets are very tight, HUD believes that owners
should have the flexibility permitted by the statute to allow families
already occupying assisted housing to remain until they are able to
locate other suitable housing.
Two commenters raised the issue of whether deferral of termination
of assistance would be available to persons with ineligible immigration
status. The commenters appeared to believe that to obtain such relief,
the ``family'' must have children.
Temporary deferral of termination of assistance is not limited to
families with children. An ineligible individual residing in Federally
assisted housing could qualify for a deferral of termination of
assistance if the individual could demonstrate that reasonable attempts
to locate other suitable housing were unsuccessful. Recognizing that
barrier-free housing suitable for mobility-impaired individuals is not
readily available in the private market, it is likely that such an
individual could make the necessary showing. (More permanent relief, in
the form of continuation of assistance, might also be possible for a
disabled person who is a member of a multi-person family that meets the
special family definition, e.g., a family consisting of a disabled
undocumented alien and a citizen spouse.)
The 1988 proposed rule provided that, with respect to a tenant
whose termination of assistance has been deferred once, an owner must
make a determination of the availability of affordable housing and a
decision about whether to extend the deferral of termination of
assistance in sufficient time that the tenant can be notified at least
60 days before the expiration of the deferral period of whether
termination will be deferred again.
A few commenters stated that this notice: (1) Must be given in
writing at least 60 days before the expiration of the deferral period;
(2) must be given in accordance with formal notice procedures (stating
the reasons for any decision not to extend the deferral period, which
must be based on relevant factors); and (3) must include an offer of a
hearing.
HUD agrees that adequate notice must be given before the expiration
of the deferral in all cases, and the 1994 proposed rule adopts this
suggestion.
6. Availability of Alternative Housing
Under the deferral of termination of assistance provisions, what is
important to an ineligible tenant is the type of evidence necessary to
demonstrate that ``reasonable efforts'' have been made to find
``affordable housing'' of ``appropriate size''. Several commenters
wanted HUD to provide specific guidelines for these terms to assure
that decisions are not arbitrary. Commenter suggestions with respect to
``affordable housing'' were that this term must refer to housing for
which the rent does not exceed that amount that would be paid in
accordance with section 3(a) of the 1937 Act for a unit in the public
housing program, and housing that is required to meet HUD's Section 8
Housing Quality Standards. Another commenter suggested that this term
should refer to housing located in the same community as that in which
the tenant is currently residing, and that ``appropriate size'' be
established with reference to HUD housing programs.
If ``affordable housing'' and ``appropriate size'' of unit were
defined as suggested by the commenters, it is likely that the only
housing that would satisfy the test would be HUD-assisted housing. In
many markets, housing assisted by HUD under the 1937 Act is the only
resource available to poor families that meets those specifications,
and, therefore, the test of the availability of other affordable
housing would have little meaning. Consequently, HUD declines to define
the ``affordable housing'' alternative in the terms suggested.
However, HUD agrees that some guidance on the subject is needed,
and the 1994 proposed rule provides guidance. The rule provides that
other affordable housing refers to housing that is not substandard,
that is of appropriate size for the family and that can be rented for
an amount not exceeding the amount that the family pays for rent,
including utilities, plus 25 percent.
N. Protection From Liability
One commenter noted that although the 1988 proposed rule protected
from liability both project owners and mortgagees who comply with the
rule's verification requirements, only mortgagees are affirmatively
sanctioned under the rule for noncompliance with the verification
procedures. (See Sec. 235.13(g) of 1988 proposed rule, and
Sec. 235.13(d) of 1994 proposed rule.) The commenter asked HUD to
extend similar sanctions under part 200 to all project owners.
HUD has reviewed ``invalid certification'' language applicable to
mortgagees, and notes that under that provision, a mortgagee in the
section 235 program who falsely certifies to HUD that it has verified a
mortgagor's citizenship or immigration documents, must repay to HUD the
full amount of assistance payments made on behalf of the mortgagor. The
provision also prohibits any additional assistance payments from being
made on the mortgagor's behalf.
One commenter stated that while the 1988 proposed rule provides HAs
with flexibility in implementation, it also increases their potential
liability, and asked that the rule be revised to reduce this exposure.
Another commenter asked that HAs be indemnified for any wrongful
determinations of eligibility.
HUD has not adopted either of these suggestions, since responsible
entities that follow the statutory verification and due process
requirements are protected from liability under both the 1987 Act and
IRCA. Under section 1436a(e) (added by IRCA), HUD is prohibited from
taking:
* * * any compliance, disallowance, penalty, or other regulatory
action against an entity with respect to any error in the entity's
determination to make an individual eligible for financial
assistance based on citizenship or immigration status * * * (if such
eligibility is based upon the responsible entity's complying with
the verification and other procedural due process requirements
mandated under IRCA.)
And, section 1436a(f)(1), added by the 1987 Act, provides that:
Notwithstanding any other provision of law, no agency or
official of a State or local government shall have any liability for
the design or implementation of the Federal verification system * *
* if the implementation by the State or local agency or official is
in accordance with Federal rules and regulations.
Because a responsible entity that follows the verification and due
process requirements established in the final rule is statutorily
protected from liability, HUD has not revised the requirements in the
1994 proposed rule to include any additional protections.
O. Reexamination of Income
Two commenters argued that the requirement for annual verification
of the immigration status of any tenant family containing one or more
non-citizen members is an unnecessary burden for project owners, HAs,
and tenants. The commenters that immigration status rarely changes, and
that any additional burden encountered because of an applicant's lack
of citizenship might result in discrimination by project owners against
all noncitizens.
HUD agrees that the burden of requiring an annual recertification
and verification of immigration status of all noncitizen members of
tenant families outweighs any benefit to be obtained, and the 1994
proposed rule revises the reexamination provisions to restrict the
requirement for submission of a declaration (and documentation and
verification of immigration status, where an alien is involved) to new
individuals joining the household--other than by birth to one of the
occupants.
P. Miscellaneous
1. Cost
Several of the commenters on the 1988 proposed rule complained that
the requirement that the immigration status of all applicants be
documented and verified under these procedures which include the offer
of hearings at several points would be expensive and time-consuming.
One commenter estimated that it would need to hire 56 additional
housing assistants, at a cost of $2 million, as well as conduct
training of its employees, at a cost of $250,000, and spend $800,000 on
notifying applicants of the requirements. Several HA commenters
suggested that HUD reimburse them for additional staff time. Another
commenter speculated that some landlords would withdraw from
participation in HUD programs rather than put up with the extra burdens
and costs of the new requirement.
HUD is aware that the verification procedure prescribed by IRCA is
not without cost. The Federal government will incur the cost of the
computerized verification system (SAVE) operated by the INS. The cost
of operating that system will not be billed to the HA or project owner
accessing the system but to HUD, for each inquiry made to the system.
For HAs and project owners in most areas of the country, the cost of
the verification system will not be substantial, because most
applicants and tenants will certify that they are citizens. For HAs and
project owners located in the parts of the country where the
concentration of noncitizen residents is greatest, there will be
greater impact. However, the additional cost will be only a small,
incremental change in the overall cost of processing applications and
reexaminations.
One small HA advocated that HUD at least provide grants to small
HAs who must computerize to accomplish the required verification. HUD
sees no reason that any HA would need to computerize in order to
implement these requirements. All that is necessary to access the SAVE
system is a touch-tone telephone.
2. Implementation Timing
HAs indicated that the rule should not be implemented until the INS
verification program is fully operational and readily available for
their use. As stated earlier in this preamble, HUD is in full agreement
with that desire. The SAVE system is operational. Funds have been
budgeted for billing the cost of SAVE access for HUD programs to HUD.
After the publication of the final rule, arrangements will be made to
issue identifying codes to the many administrators of HUD-assisted
housing.
3. Other Changes
A number of the sections in the 1994 proposed rule have been
revised and restructured for ease of understanding and clarity of
complex provisions.
In the 1994 proposed rule, HUD has changed the minimum retention
period for documents from 3 years to 5 years. This makes the retention
period coincide with the statute of limitations for criminal
prosecution and the ongoing needs for computer matching to verify
tenant income. The five-year retention requirement does not impose a
burden on HAs and private project owners, because HAs and project
owners currently retain the records concerning the initial
certification, regular recertification and interim recertification for
at least five years.
VIII. Other Matters
Executive Order 12866
This proposed rule was reviewed by the Office of Management and
Budget under Executive Order 12866 as a significant regulatory action.
Any changes made in this proposed rule as a result of that review are
clearly identified in the docket file for this proposed rule, which is
available for public inspection in the Office of HUD's Rules Docket
Clerk, Room 10276, 451 Seventh Street, SW., Washington, DC 20410-0500.
Environmental Review
A Finding of No Significant Impact with respect to the environment
was made in accordance with HUD regulations in 24 CFR part 50 that
implement section 102(2)(C) of the National Environmental Policy Act of
1969 (42 U.S.C. 4332). The Finding is available for public inspection
between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules
Docket Clerk at the above address.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication, and
by approving it, certifies that this rule does not have a significant
economic impact on a substantial number of small entities. HUD believes
that the rule, when implemented, will have only a minimal impact on
small housing project owners, small mortgagees and small housing
agencies, since the procedures specified to implement the restrictions
are to require owners and HAs to use an easily accessible (by
telephone) automated system for verifying immigration status. HUD has
arranged for the cost of the automated verification system, established
by the Immigration and Naturalization Service, to be billed directly to
HUD. The only other significant element of cost or delay in
administration of HUD programs that may be encountered by small
entities as a result of this rule is the requirement for a fair
hearing, on request, for any applicant or tenant found to be
ineligible. This procedure is specifically required by 42 U.S.C. 1436a.
However, HUD does not believe that the cost or delay will be
significant because HUD anticipates that small housing agencies,
project owners and mortgagees will find that the majority of applicants
or tenants are eligible to receive HUD assistance, and therefore fair
hearings to determine eligibility on the basis of immigration status
will be minimal.
Therefore, HUD concludes that this rule will not have a significant
economic impact on a substantial number of small entities, and that to
the extent possible, HUD has minimized the economic impact on all
entities, consistent with the Secretary's responsibilities under
section 1436a.
Executive Order on Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule will not have substantial direct
effects on States or their political subdivisions, or the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
This proposed rule addresses immigration, a topic exclusively the
province of the Federal government, and the effect is the direct result
of the statute that imposes the restriction against assistance to
noncitizens, rather than a result of HUD's exercise of discretion in
promulgating a rule to implement the statute.
Executive Order on The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that the provisions of this
proposed rule, while affecting the composition and well-being of
families, are strictly the result of the statute that imposes the
restriction. The only families upon whom the statute and the rule have
an impact are those containing individuals with ineligible immigration
status who are not receiving the benefit of assisted housing, or whose
continued receipt of assisted housing is not necessary in order to
avoid the division of the family. However, even for families that
contain members with ineligible status, the rule strives to maintain
the unity of the family under the regulatory provisions concerning
special assistance to mixed families.
Regulatory Agenda
This proposed rule was listed as sequence number 1525 in the
Department's Semiannual Agenda of Regulations published on April 25,
1994 (59 FR 20424, 20433), under Executive Order 12866 and the
Regulatory Flexibility Act.
Public Reporting Burden
The information collection requirements contained in Secs. 200.183,
200.185, 200.186, 200.187, 235.13, 812.6, 812.8, 812.9, 812.10,
905.310, 912.6, 912.8, 912.9, and 912.10 of this rule have been
submitted to the Office of Management and Budget (OMB) for review under
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520) and have been
assigned OMB control numbers 2502-0356 and 2577-0093. In accordance
with OMB regulations codified at 5 CFR 1320.13 and 1320.15, the
following chart is provided to describe the collection of information
requirements.
Tabulation of Annual Reporting Burden; Proposed Rule--Restriction on Assistance to Noncitizens
----------------------------------------------------------------------------------------------------------------
No. of
Description of No. of responses Total
information Section of 24 respondents per annual Hours per Total hours
collection CFR affected respondents responses response
----------------------------------------------------------------------------------------------------------------
Notification to 905.310(g), 3,300 700 2,310,000 .01............ 23,100
tenants and 912.6.
applicants in Public
& Indian Housing.
Denials, 905.310(m)(4), 3,300 19 62,700 .10 (6 minutes) 6,270
terminations, (r), 912.9,
extensions deferrals. 912.10.
Notification and 812.6, 812.9, 2,470,777 1 2,470,777 .05 (3 minutes) 123,539
verification, 812.10.
denial, termination
in section 8.
Notification and 200.183, 412,315 1 412,315 .05............ 20,616
verification, 200.186,
denial, termination 200.187, 235.13.
in FHA subsidized.
Extensions........... 812.6(h), 144,155 1 144,155 .16............ 23,065 (10
200.183(h). min.)
Recordkeeping--Public 905.310(q), 3,300 761 2,511,300 .01............ 25,113
and Indian Housing. 912.9(h).
Recordkeeping in 812.9(h)........ 2,470,777 1 2,470,777 .05............ 125,539
section 8.
Recordkeeping in FHA 200.186(h), 412,315 1 412,315 .05............ 20,616
subsidized. 235.13.
----------------
Total annual ................ ........... ........... ........... ............... 405,458
burden.
----------------------------------------------------------------------------------------------------------------
List of Subjects
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Housing standards, Incorporation by
reference, Lead poisoning, Loan programs--housing and community
development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 215
Grant Programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 235
Condominiums, Cooperatives, Grant programs--housing and community
development, Low and moderate income housing, Mortgage insurance,
Reporting and recordkeeping requirements.
24 CFR Part 236
Grant programs--housing and community development, Low and moderate
income housing, Mortgage insurance, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 247
Grant programs--housing and community development, Loan programs--
housing and community development, Low and moderate income housing,
Rent subsidies.
24 CFR Part 812
Low and moderate income housing, Reporting and recordkeeping
requirements.
24 CFR Part 850
Grant programs--housing and community development, Low and moderate
income housing, Reporting and recordkeeping requirements.
24 CFR Part 880
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 881
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 882
Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 883
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 884
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, Rural areas.
24 CFR Part 886
Grant programs--housing and community development, Lead poisoning,
Rent subsidies, Reporting and recordkeeping requirements.
24 CFR Part 887
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 900
Grant programs--housing and community development, Rent subsidies.
24 CFR Part 904
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing.
24 CFR Part 905
Aged, Energy conservation, Grant programs--housing and community
development, Grant programs--Indians, Homeownership, Indians,
Individuals with disabilities, Lead poisoning, Loan programs--housing
and community development, Loan programs--Indians, Low and moderate
income housing, Public housing, Reporting and recordkeeping
requirements.
24 CFR Part 912
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
24 CFR Part 960
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing.
Accordingly, title 24 of the Code of Federal Regulations, parts
200, 215, 235, 236, 247, 812, 859, 880, 881, 882, 883, 884, 886, 887,
900, 904, 905, 912 and 960 would be amended as follows:
PART 200--INTRODUCTION
1. The authority citation for part 200 would be revised to read as
follows:
Authority: 12 U.S.C. 1701-715z-18; 42 U.S.C. 1436a and 3535(d).
2. A new subpart G, consisting of Secs. 200.180 through 200.192,
would be added to read as follows:
Subpart G--Restrictions on Assistance to Noncitizens
Sec.
200.180 Applicability.
200.180a Requirements concerning documents.
200.181 Definitions.
200.182 General provisions.
200.183 Submission of evidence of citizenship or eligible
immigration status.
200.184 Documents of eligible immigration status.
200.185 Verification of eligible immigration status.
200.186 Delay, denial, reduction or termination of assistance.
200.187 Preservation of mixed families and other families.
200.188 Proration of assistance.
200.189 Prohibition of assistance to noncitizen students.
200.190 Compliance with nondiscrimination requirements.
200.191 Protection from liability for project owners, State and
local government agencies and officials.
200.192 Liability of ineligible tenants for reimbursement of
benefits.
Subpart G--Restrictions on Assistance to Noncitizens
Sec. 200.180 Applicability.
(a) Covered programs/assistance. This subpart implements the
statutory restrictions on providing financial assistance to benefit
individuals who are not in eligible status with respect to citizenship
or noncitizen immigration status. This subpart is applicable to
financial assistance provided under:
(1) Section 235 Program assistance. Section 235 of the National
Housing Act (12 U.S.C. 1715-z) (the Section 235 Program), and for which
the implementing regulations are codified in 24 CFR part 235;
(2) Section 236 Program assistance (below market rent only).
Section 236 of the National Housing Act (12 U.S.C. 1715z-1) (tenants
paying below market rent only) (the Section 236 Program), and for which
the implementing regulations are codified in 24 CFR part 236, subpart
D; or
(3) Rent Supplement Program assistance. Section 101 of the Housing
and Urban Development Act of 1965 (12 U.S.C. 1701s) (the Rent
Supplement Program), and for which the implementing regulations are
codified in 24 CFR part 215.
(b) When financial assistance is considered paid. Covered financial
assistance is considered to be provided (or paid), and the restrictions
on providing covered financial assistance to noncitizens with
ineligible immigration status are applicable as follows:
(1) Payment under Section 235 Program. Financial assistance is
considered to be paid under the Section 235 program on behalf of a
mortgagor when:
(i) The dwelling unit is subject to a mortgage insured under
section 235 of the National Housing Act (and part 235 of this chapter);
and
(ii) Assistance payments are made to the mortgagee on behalf of the
mortgagor under a contract between the mortgagee and the Secretary in
accordance with section 235(b) of the National Housing Act, unless
those assistance payments are pro-rated in accordance with
Sec. 200.188.
(2) Payment under Section 236 Program. Financial assistance is
considered to be paid under the Section 236 program on behalf of a
tenant or cooperative unit purchaser when:
(i) The project is subject to a mortgage insured or the project is
assisted under section 236 of the National Housing Act (and part 236 of
this chapter) for which interest reduction payments are paid under a
contract between the mortgagee and the Secretary; and
(ii) The monthly rental charge paid to the owner for the dwelling
unit is less than the HUD-approved market rent, whether or not rental
assistance payments are also paid under a contract in accordance with
section 236(f)(2) and part 236, subpart D, of this chapter, unless
those assistance payments are prorated in accordance with Sec. 200.188.
(3) Payment under Rent Supplement Program. Financial assistance is
considered to be paid under the Rent Supplement program administered
under section 101 of the Housing and Urban Development Act of 1965 when
rent supplement payments are paid under a contract between the project
owner and the Secretary in accordance with that section and part 215 of
this chapter, unless those assistance payments are prorated in
accordance with Sec. 200.188.
(c) Covered individuals and entities--(1) Covered individuals/
persons and families. The provisions of this subpart apply to both
applicants for assistance and persons already receiving assistance
covered under this subpart (i.e., tenants, homebuyers, cooperative
members; see definition of ``tenant'' in Sec. 200.181). Unless the
context clearly indicates otherwise, the terms ``individual,''
``person'' or ``family,'' or the plural of these terms, as used in this
subpart apply to both an applicant and a tenant, or an applicant family
or a tenant family.
(2) Covered entities. The provisions of this subpart apply to both
project owners (as defined in Sec. 200.181) and mortgagees under the
Section 235 homeownership program. Unless the context clearly indicates
otherwise, the term ``project owner'' as used in this subpart includes
mortgagee.
(d) Administration of restrictions on providing assistance. Project
owners shall administer the restrictions on providing assistance to
noncitizens with ineligible immigration status in accordance with the
requirements of this subpart.
Sec. 200.180a Requirements concerning documents.
For any notice or document (decision, declaration, consent form,
etc.) that this subpart requires the project owner to provide to an
individual, or requires the project owner to obtain the signature of an
individual, the project owner, where feasible, must arrange for the
notice or document to be provided to the individual in a language that
is understood by the individual if the individual is not proficient in
English. (See 24 CFR 8.6 of HUD's regulations for requirements
concerning communications with persons with disabilities.)
Sec. 200.181 Definitions.
Assisted dwelling unit means a dwelling unit for which financial
assistance is considered to be paid, as determined in accordance with
Sec. 200.180.
Child means a member of the family, other than the family head or
spouse, who is under 18 years of age.
Citizen means a citizen or national of the United States.
Evidence of citizenship or eligible immigration status means the
documents which must be submitted to evidence citizenship or eligible
immigration status. (See Sec. 200.186(b).)
Family. Except as may be otherwise specified in this subpart, the
term ``family'' for purposes of this subpart shall have the same
meaning as provided in the definition section of the regulations for
each of the following programs: the Section 235 Program, Section 236
Program, and the Rent Supplement Program. (See, respectively, 24 CFR
235.5, 24 CFR 236.2, 24 CFR 215.1).
Financial assistance or covered financial assistance. See
Sec. 200.180.
Head of household means the adult member of the family who is the
head of the household for purposes of determining income eligibility
and rent.
HUD means the Department of Housing and Urban Development.
INS means the U.S. Immigration and Naturalization Service.
Mixed family means a family whose members include those with
citizenship or eligible immigration status, and those without
citizenship or eligible immigration status.
National means a person who owes permanent allegiance to the United
States, for example, as a result of birth in a United States territory
or possession.
Noncitizen means a person who is neither a citizen nor national of
the United States.
Project owner means the person or entity that owns the housing
project containing the assisted dwelling unit. For purposes of this
subpart, this term includes the mortgagee, in the case of a Section 235
mortgage.
Section 214 means section 214 of the Housing and Community
Development Act of 1980, as amended (42 U.S.C. 1436a). Section 214
restricts HUD from making financial assistance available for
noncitizens unless they meet one of the six statutory categories of
eligible immigration status.
Tenant means for the Rent Supplement program and the section 236
program, an individual or a family renting an assisted dwelling unit or
occupying such a dwelling unit as a cooperative member. For purposes of
simplifying the language in this subpart to include the section 235
homeownership program, the term tenant will also be used to include a
homebuyer, where appropriate.
Sec. 200.182 General provisions.
(a) Restrictions on assistance. Financial assistance under the
programs covered by this subpart is restricted to:
(1) Citizens, or
(2) Noncitizens who have eligible immigration status in one of the
following categories:
(i) A noncitizen lawfully admitted for permanent residence, as
defined by section 101(a)(20) of the Immigration and Nationality Act
(INA), as an immigrant, as defined by section 101(a)(15) of the INA (8
U.S.C. 1101(a)(20) and 1101(a)(15), respectively) [immigrants]. (This
category includes a noncitizen admitted under section 210 or 210A of
the INA (8 U.S.C. 1160 or 1161), [special agricultural worker], who has
been granted lawful temporary resident status);
(ii) A noncitizen who entered the United States before January 1,
1972, or such later date as enacted by law, and has continuously
maintained residence in the United States since then, and who is not
ineligible for citizenship, but who is deemed to be lawfully admitted
for permanent residence as a result of an exercise of discretion by the
Attorney General under section 249 of the INA (8 U.S.C. 1259);
(iii) A noncitizen who is lawfully present in the United States
pursuant to an admission under section 207 of the INA (8 U.S.C. 1157)
[refugee status]; pursuant to the granting of asylum (which has not
been terminated) under section 208 of the INA (8 U.S.C. 1158) [asylum
status]; or as a result of being granted conditional entry under
section 203(a)(7) of the INA (8 U.S.C. 1153(a)(7)) before April 1,
1980, because of persecution or fear of persecution on account of race,
religion, or political opinion or because of being uprooted by
catastrophic national calamity;
(iv) A noncitizen who is lawfully present in the United States as a
result of an exercise of discretion by the Attorney General for
emergent reasons or reasons deemed strictly in the public interest
under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) [parole
status];
(v) A noncitizen who is lawfully present in the United States as a
result of the Attorney General's withholding deportation under section
243(h) of the INA (8 U.S.C. 1253(h)) [threat to life or freedom]; or
(vi) A noncitizen lawfully admitted for temporary or permanent
residence under section 245A of the INA (8 U.S.C. 1255a) [amnesty
granted under INA 245A].
(b) Family eligibility for assistance. (1) A family shall not be
eligible for assistance unless every member of the family residing in
the unit is determined to have eligible status, as described in
paragraph (a) of this section;
(2) Despite the ineligibility of one or more family members, a
mixed family may be eligible for one of the three types of assistance
provided in Sec. 200.187. A family without any eligible members and
receiving assistance on [insert the effective date of the final rule]
may be eligible for temporary deferral of termination of assistance as
provided in Sec. 200.187.
Sec. 200.183 Submission of evidence of citizenship or eligible
immigration status.
(a) General. Eligibility for assistance or continued assistance
under a program covered by this subpart is contingent upon a family's
submission to the project owner of the documents described in paragraph
(b) of this section for each family member. If one or more family
members do not have citizenship or eligible immigration status, the
family members may exercise the election not to contend to have
eligible immigration status as provided in paragraph (e) of this
section, and the provisions of Sec. 200.187 shall apply.
(b) Evidence of citizenship or eligible immigration status. Each
family member, regardless of age, must submit the following evidence to
the project owner.
(1) For citizens, the evidence consists of a signed declaration of
U.S. citizenship;
(2) For noncitizens who are 62 years of age or older or who will be
62 years of age or older and receiving assistance under a covered
program on [insert the effect date of the final rule], the evidence
consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document.
(3) For all other noncitizens, the evidence consists of:
(i) A signed declaration of eligible immigration status;
(ii) The INS documents listed in Sec. 200.184; and
(iii) A signed verification form.
(c) Declaration. (1) For each family member, the family must submit
to the project owner a written declaration, signed under penalty of
perjury, by which the family member declares whether he or she is a
U.S. citizen or a noncitizen with eligible immigration status.
(i) For each adult, the declaration must be signed by the adult.
(ii) For each child, the declaration must be signed by an adult
residing in the assisted dwelling unit who is responsible for the
child.
(2) The written declaration may be incorporated as part of the
application for housing assistance or may constitute a separate
document.
(d) Verification consent form--(1) Who signs. Each noncitizen who
declares eligible immigration status must sign a verification consent
form as follows.
(i) For each adult, the form must be signed by the adult.
(ii) For each child, the form must be signed by an adult residing
in the assisted dwelling unit who is responsible for the child.
(2) Notice of release of evidence by project owner. The
verification consent form shall provide that evidence of eligible
immigration status may be released by the project owner without
responsibility for the further use or transmission of the evidence by
the entity receiving it, to:
(i) HUD, as required by HUD;
(ii) The INS; and, if applicable;
(iii) Another Federal agency, or a State or local government agency
in accordance with Federal, State or local law that requires the
release of the evidence to that agency.
(3) Notice of release of evidence by HUD. The verification consent
form also shall notify the individual of the possible release of
evidence of eligible immigration status by HUD. Evidence of eligible
immigration status shall only be released to the INS for purposes of
establishing eligibility for financial assistance and not for any other
purpose. HUD is not responsible for the further use or transmission of
the evidence or other information by the INS.
(e) Individuals who do not contend that they have eligible status.
If one or more members of a family elect not to contend that they have
eligible immigration status, and other members of the family establish
their citizenship or eligible immigration status, the family may be
eligible for prorated assistance under Sec. 200.188, despite the fact
that no declaration or documentation of eligible status is submitted
for one or more members of the family. The family must, however,
identify to the project owner, the family member (or members) who will
elect not to contend that he or she has eligible immigration status.
(f) Notification of requirements of section 214--(1) When notice is
to be issued. Notification of the requirement to submit evidence of
citizenship or eligible immigration status, as required by this
section, or to elect not to contend that one has eligible status, as
provided by paragraph (e) of this section, shall be given by the
project owner as follows:
(i) Applicant's notice. Notification of the requirement to submit
evidence of eligible status shall be given to each applicant at the
time of application for assistance. Applicants whose applications are
pending on [insert the effective date of the final rule] shall be
notified of the requirement to submit evidence of eligible status as
soon as possible after [insert the effective date of the final rule].
(ii) Tenant's notice. Notification of the requirement to submit
evidence of eligible status shall be given to each tenant at the time
of, and together with, the project owner's notice of regular
reexamination of tenant income, but not later than one year following
[insert the effective date of the final rule].
(iii) Timing of mortgagor's notice. A mortgagor receiving section
235 assistance must be notified of the requirement to submit evidence
of eligible status in accordance with Sec. 235.13(b)(2).
(2) Form and content of notice. The notice shall:
(i) State that financial assistance is contingent upon the
submission and verification, as appropriate, of evidence of citizenship
or eligible immigration status as required by paragraph (a) of this
section;
(ii) Describe the type of evidence that must be submitted, and
state the time period in which that evidence must be submitted (see
paragraph (g) of this section concerning when evidence must be
submitted); and
(iii) State that assistance will be prorated, denied or terminated,
as appropriate, upon a final determination of ineligibility after all
appeals have been exhausted (see Sec. 200.186 concerning INS appeal,
and informal hearing process by the project owner) or, if appeals are
not pursued, at a time to be specified in accordance with HUD
requirements. Tenants also shall be informed of how to obtain
assistance under the preservation of families provisions of
Sec. 200.187.
(g) When evidence of eligible status is required to be submitted.
The project owner shall require evidence of eligible status to be
submitted at the times specified in paragraph (g) of this section,
subject to any extension granted in accordance with paragraph (h) of
this section.
(1) Applicants. For applicants, project owners must ensure that
evidence of eligible status is submitted not later than the date the
project owner anticipates or has knowledge that verification of other
aspects of eligibility for assistance will occur (see Sec. 200.185(a)).
(2) Tenants. For tenants (i.e., persons already receiving the
benefit of assistance in a covered program on [insert the effective
date of the final rule]), evidence of eligible status is required to be
submitted as follows:
(i) For financial assistance in the form of rent supplement
payments or section 236 basic rent tenancy or rental assistance
payments, the tenant shall, in accordance with the provisions of
Secs. 215.55(a) and 236.80(a) of this chapter, submit the required
evidence at the first regular reexamination after [insert the effective
date of the final rule].
(ii) For financial assistance in the form of section 235 assistance
payments, the mortgagor shall submit the required evidence in
accordance with Sec. 235.13(c) of this chapter.
(3) New occupants of assisted units. For any new occupant of an
assisted unit (e.g., a new family member comes to reside in the
assisted unit), the required evidence shall be submitted at the first
interim or regular reexamination following the person's occupancy.
(4) Changing participation in a HUD program. Whenever a family
applies for admission to a program covered by this subpart, evidence of
eligible status is required to be submitted in accordance with the
requirements of this subpart unless the family already has submitted
the evidence to the project owner for a covered program.
(5) One-time evidence requirement for continuous occupancy. For
each family member, the family is required to submit evidence of
eligible status only one time during continuously assisted occupancy
under any covered program.
(h) Extensions of time to submit evidence of eligible status--(1)
When extension must be granted. The project owner shall extend the
time, provided in paragraph (g) of this section, to submit evidence of
eligible immigration status if the family member:
(i) Submits the declaration required under Sec. 200.183(a)
certifying that any person for whom required evidence has not been
submitted is a noncitizen with eligible immigration status; and
(ii) Certifies that the evidence needed to support a claim of
eligible immigration status is temporarily unavailable, additional time
is needed to obtain and submit the evidence; and prompt and diligent
efforts will be undertaken to obtain the evidence.
(2) Prohibition on indefinite extension period. Any extension of
time, if granted, shall be for a specific period of time. The
additional time provided should be sufficient to allow the individual
the time to obtain the evidence needed. The project owner's
determination of the length of the extension needed shall be based on
the circumstances of the individual case.
(3) Grant or denial of extension to be in writing. The project
owner's decision to grant or deny an extension as provided in paragraph
(h)(1) of this section shall be issued to the family by written notice.
If the extension is granted, the notice shall specify the extension
period granted. If the extension is denied, the notice shall explain
the reasons for denial of the extension.
(i) Failure to submit evidence or to establish eligible status. If
the family fails to submit required evidence of eligible immigration
status within the time period specified in the notice, or any extension
granted in accordance with paragraph (h) of this section, or if the
evidence is timely submitted but fails to establish eligible
immigration status, the project owner shall proceed to deny, prorate or
terminate assistance, or provide continued assistance or temporary
deferral of termination of assistance, as appropriate, in accordance
with the provisions of Secs. 200.186 and 200.187.
Sec. 200.184 Documents of eligible immigration status.
(a) General. A project owner shall request and review original
documents of eligible immigration status. The project owner shall
retain photocopies of the documents for its own records and return the
original documents to the family.
(b) Acceptable evidence of eligible immigration status. The
original of one of the following documents is acceptable evidence of
eligible immigration status, subject to verification in accordance with
Sec. 200.185.
(1) Form I-551, Alien Registration Receipt Card (for permanent
resident aliens);
(2) Form I-94, Arrival-Departure Record, with one of the following
annotations:
(i) ``Admitted as Refugee Pursuant to section 207'';
(ii) ``Section 208'' or ``Asylum'';
(iii) ``Section 243(h)'' or ``Deportation stayed by Attorney
General'';
(iv) ``Paroled Pursuant to Sec. 212(d)(5) of the INA'';
(3) If Form I-94, Arrival-Departure Record, is not annotated, then
accompanied by one of the following documents:
(i) A final court decision granting asylum (but only if no appeal
is taken);
(ii) A letter from an INS asylum officer granting asylum (if
application is filed on or after October 1, 1990) or from an INS
district director granting asylum (if application filed before October
1, 1990);
(iii) A court decision granting withholding or deportation; or
(iv) A letter from an INS asylum officer granting withholding of
deportation (if application filed on or after October 1, 1990).
(4) Form I-688, Temporary Resident Card, which must be annotated
``section 245A'' or ``section 210'';
(5) Form I-688B, Employment Authorization Card, which must be
annotated ``Provision of Law 274a.12(11)'' or ``Provision of Law
274a.12'';
(6) A receipt issued by the INS indicating that an application for
issuance of a replacement document in one of the above-listed
categories has been made and the applicant's entitlement to the
document has been verified; or
(c) Other acceptable evidence. If other documents are determined to
constitute acceptable evidence of eligible immigration status, they
will be announced by HUD in a notice published in the Federal Register.
Sec. 200.185 Verification of eligible immigration status.
(a) When verification is to occur. Verification of eligible
immigration status shall be conducted by the project owner
simultaneously with verification of other aspects of eligibility for
assistance or continued eligibility for assistance under a covered
program. The project owner shall verify eligible immigration status in
accordance with the INS procedures described in this section.
(b) Primary verification.--(1) Automated verification system.
Primary verification of the immigration status of the person is
conducted by the project owner through the INS automated system (INS
Systematic Alien Verification for Entitlements (SAVE)). The INS SAVE
system provides access to names, file numbers and admission numbers of
noncitizens.
(2) Failure of primary verification to confirm eligible immigration
status. If the INS SAVE system does not verify eligible immigration
status, secondary verification must be performed.
(c) Secondary verification.--(1) Manual search of INS records.
Secondary verification is a manual search by the INS of its records to
determine an individual's immigration status. The project owner must
request secondary verification, within 10 days of receiving the results
of the primary verification, if the primary verification system does
not confirm eligible immigration status, or if the primary verification
system verifies immigration status that is ineligible for assistance
covered by this subpart.
(2) Secondary verification initiated by project owner. Secondary
verification is initiated by the project owner forwarding photocopies
of the original INS documents listed in Sec. 200.184 (front and back),
attached to the INS document verification request form G-845S (Document
Verification Request), to a designated INS office for review. (Form G-
845S is available from the local INS Office.)
(3) Failure of secondary verification to confirm eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the project owner shall issue to the
family the notice described in Sec. 200.186(d), which includes
notification of appeal to the INS of the INS finding on immigration
status (see Sec. 200.186(d)(4)).
(d) Exemption from liability for INS verification. The project
owner shall not be liable for any action, delay, or failure of the INS
in conducting the automated or manual verification.
Sec. 200.186 Delay, denial, reduction or termination of assistance.
(a) General. Assistance to a family may not be delayed, denied,
reduced or terminated because of the immigration status of a family
member except as provided in this section.
(b) Restrictions on delay, denial, reduction or termination of
assistance.--(1) Restrictions on reduction, denial or termination of
assistance. Assistance to an applicant shall not be reduced or denied,
and assistance to a tenant shall not be delayed, denied, reduced, or
terminated, on the basis of ineligible immigration status of a family
member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the assisted dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
assisted dwelling unit;
(iii) The INS appeals process under Sec. 200.186(e) has not been
concluded; or
(iv) For a tenant, the informal hearing process under
Sec. 200.186(f) has not been concluded.
(2) Restrictions on denial or termination. Assistance to an
applicant shall not be denied, and assistance to a tenant shall not be
terminated, on the basis of ineligible immigration status of a family
member if:
(i) Assistance is prorated in accordance with Sec. 200.188;
(ii) Assistance for a mixed family is continued in accordance with
Sec. 200.187; or
(iii) Deferral of termination of assistance is granted in
accordance with Sec. 200.187.
(3) When delay of assistance to an applicant is permissible.
Assistance to an applicant may be delayed after the conclusion of the
INS appeal process, but not denied until the conclusion of the informal
hearing process, if an informal hearing is requested by the family.
(c) Events causing denial or termination of assistance.--(1)
General. Assistance to an applicant shall be denied, and a tenant's
assistance shall be terminated, in accordance with the procedures of
this section, upon the occurrence of any of the following events:
(i) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date specified in
Sec. 200.183(g) or by the expiration of any extension granted in
accordance with Sec. 200.183(h); or
(ii) Evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and secondary verification does not
verify eligible immigration status of a family member; and
(iii) The family does not pursue INS appeal or informal hearing
rights as provided in this section; or
(iv) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family
member.
(2) Termination of assisted occupancy. For termination of assisted
occupancy, see paragraph (i) of this section.
(d) Notice of denial or termination of assistance. The notice of
denial or termination of assistance shall advise the family:
(1) That financial assistance will be denied or terminated, and
provide a brief explanation of the reasons for the proposed denial or
termination of assistance;
(2) That the family may be eligible for proration of assistance as
provided under Sec. 200.188;
(3) In the case of a tenant, the criteria and procedures for
obtaining relief under the preservation of families provision in
Sec. 200.187;
(4) That the family has a right to request an appeal to the INS of
the results of secondary verification of immigration status and to
submit additional documentation or a written explanation in support of
the appeal in accordance with the procedures of paragraph (e) of this
section;
(5) That the family has a right to request an informal hearing with
the project owner either upon completion of the INS appeal or in lieu
of the INS appeal as provided in paragraph (f) of this section;
(6) For applicants, the notice shall advise that assistance may not
be delayed until the conclusion of the INS appeal process, but
assistance may be delayed during the pendency of the informal hearing
process.
(e) Appeal by applicant to the INS.--(1) Submission of request for
appeal to project owner. Upon receipt of notification by the project
owner that INS secondary verification failed to confirm eligible
immigration status, the family may request an appeal to the INS by
communicating that request to the project owner within 14 days of the
date the project owner mails or delivers the notice under paragraph (d)
of this section.
(2) Extension of time to request an appeal. The project owner shall
extend the period of time for requesting an appeal (for a specified
period) upon good cause shown.
(3) Forwarding the appeal to INS. If the family requests an appeal
to the INS, the project owner shall forward to the designated INS
office any additional documentation or written explanation provided by
the family in support of the appeal. This material must include a copy
of the INS document verification request form G-845S (used to process
the secondary verification request) and a cover letter indicating that
the family is requesting an appeal of the INS immigration status
verification results. (Form G-845S is available from the local INS
Office.)
(4) Decision by INS.--(i) When decision will be issued. The INS
will issue to the project owner a decision within 30 days of its
receipt of documentation concerning the family's appeal of the
verification of immigration status. If, for any reason, the INS is
unable to issue a decision within the 30 day time period, the INS will
inform the project owner of the reasons for the delay, and the project
owner will inform the family of the reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the project owner receives the INS decision, the
project owner shall notify the family of the INS determination, of the
reasons for the determination, and of the family's right to request an
informal hearing on the PHA's ineligibility determination in accordance
with the procedures of paragraph (f) of this section.
(5) No delay, denial, reduction, or termination of assistance until
completion of INS appeal process; direct appeal to INS. Pending the
completion of the INS appeal under this section, assistance may not be
delayed, denied, reduced or terminated on the basis of immigration
status.
(f) Informal hearing.--(1) When request for hearing is to be made.
After notification of the INS decision on appeal, or in lieu of request
of appeal to the INS, the family may request that the project owner
provide a hearing. This request must be made either within 14 days of
the date the project owner mails or delivers the notice under paragraph
(d) of this section, or within 14 days of the mailing of the INS appeal
decision issued in accordance with paragraph (e) of this section
(established by the date of postmark).
(2) Extension of time to request hearing. The project owner shall
extend the period of time for requesting a hearing (for a specified
period) upon good cause shown.
(3) Informal hearing procedures. A family who submits a timely
request for a hearing with the project owner shall have an opportunity
for:
(i) Hearing before an impartial individual. The family shall be
provided a hearing before any person(s) designated by the project owner
(including an officer or employee of the project owner), other than a
person who made or approved the decision under review, and other than a
person who is a subordinate of the person who made or approved the
decision;
(ii) Examination of evidence. The family shall be provided the
opportunity to examine and copy at the individual's expense, at a
reasonable time in advance of the hearing, any documents in the
possession of the project owner pertaining to the family's eligibility
status, or in the possession of the INS (as permitted by INS
requirements), including any records and regulations that may be
relevant to the hearing;
(iii) Presentation of evidence and arguments in support of eligible
status. The family shall be provided the opportunity to present
evidence and arguments in support of eligible status. Evidence may be
considered without regard to admissibility under the rules of evidence
applicable to judicial proceedings;
(iv) Controverting evidence of the project owner. The family shall
be provided the opportunity to controvert evidence relied upon by the
project owner and to confront and cross-examine all witnesses on whose
testimony or information the project owner relies;
(v) Representation. The family shall be entitled to be represented
by an attorney, or other designee, at the family's expense, and to have
such person make statements on the family's behalf;
(vi) Interpretive services. The family shall be entitled to arrange
for an interpreter to attend the hearing, at the expense of the family
or project owner, as may be agreed upon by both parties; and
(vii) Hearing to be recorded. The family shall be entitled to have
the hearing recorded by audiotape (a transcript of the hearing may, but
is not required to, be provided by the project owner).
(4) Hearing decision. The project owner shall provide the family
with a written final decision, based solely on the facts presented at
the hearing, within 14 days of the date of the informal hearing. The
decision shall state the basis for the decision.
(g) Judicial relief. A decision against a family member, issued in
accordance with paragraphs (e) or (f) of this section, does not
preclude the family from exercising the right, that may otherwise be
available, to seek redress directly through judicial procedures.
(h) Retention of documents. The project owner shall retain for a
minimum of 5 years the following documents that may have been submitted
to the project owner by the family, or provided to the project owner as
part of the INS appeal or the informal hearing process:
(1) The application for financial assistance;
(2) The form completed by the family for income re-examination;
(3) Photocopies of any original documents (front and back),
including original INS documents;
(4) The signed verification consent form;
(5) The INS verification results;
(6) The request for an INS appeal;
(7) The final INS determination;
(8) The request for an informal hearing; and
(9) The final hearing decision.
(i) Termination of assisted occupancy. Assisted occupancy is
terminated by:
(1) If permitted under the lease, the project owner notifying the
tenant that because of the termination of assisted occupancy the tenant
is required to pay the HUD-approved market rent for the dwelling unit.
(2) The project owner and tenant entering into a new lease without
financial assistance.
(3) The project owner evicting the tenant. An owner may continue to
receive assistance payments if action to terminate the tenancy under an
assisted lease is promptly initiated and diligently pursued, in
accordance with the terms of the lease, and if eviction of the tenant
is undertaken by judicial action pursuant to State and local law.
Action by the owner to terminate the tenancy and to evict the tenant
must be in accordance with 24 CFR part 247 and other HUD requirements.
For any jurisdiction, HUD may prescribe a maximum period during which
assistance payments may be continued during eviction proceedings and
may prescribe other standards of reasonable diligence for the
prosecution of eviction proceedings.
Sec. 200.187 Preservation of mixed families and other families.
(a) Assistance available for mixed families--(1) Assistance
available for tenant mixed families. For a mixed family assisted under
a program by this subpart on [insert the effective date of the final
rule], one of the following three types of assistance may be available
to the family:
(i) Continued assistance (see paragraph (b) of this section);
(ii) Prorated assistance (see Sec. 200.188); or
(iii) Temporary deferral of termination of assistance (see
paragraph (c) of this section).
(2) Assistance available for applicant mixed families. Prorated
assistance is also available for mixed families applying for assistance
as provided in Sec. 200.188.
(3) Assistance available to other families in occupancy. For
families receiving assistance under a program covered by this subpart
on [insert the effective date of the final rule] and who have no
members with eligible immigration status, the project owner may grant
the family temporary deferral of termination of assistance.
(b) Continued assistance. A mixed family shall receive continued
housing assistance if all of the following conditions are met:
(1) The family was receiving assistance under a program covered by
this subpart on [insert the effective date of the final rule];
(2) The family's head of household or spouse has eligible
immigration status as described in Sec. 200.182; and
(3) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(c) Temporary deferral of termination of assistance--(1)
Eligibility for this type of assistance. If a mixed family qualifies
for prorated assistance (and does not qualify for continued
assistance), but decides not to accept prorated assistance, or if a
family has no members with eligible immigration status, the family
shall be eligible for temporary deferral of termination of assistance
if necessary to permit the family additional time for the orderly
transition of those family members with ineligible status, and any
other family members involved, to other affordable housing. Other
affordable housing is used in the context of transition of an
ineligible family from a rent level that reflects HUD assistance to a
rent level that is unassisted; the term refers to housing that is not
substandard, that is of appropriate size for the family and that can be
rented for an amount not exceeding the amount that the family pays for
rent, including utilities, plus 25 percent.
(2) Conditions for granting temporary deferral of termination of
assistance. The project owner shall grant a temporary deferral of
termination of assistance to a mixed family if one of the following
conditions is met:
(i) The family demonstrates that reasonable efforts to find other
affordable housing of appropriate size have been unsuccessful (for
purposes of this section, reasonable efforts include seeking
information from, and pursuing leads obtained from the State housing
agency, the city government, local newspapers, rental agencies and the
owner);
(ii) The vacancy rate for affordable housing of appropriate size is
below five percent in the housing market for the area in which the
project is located; or
(iii) The Comprehensive Housing Affordability Strategy (CHAS), as
described in 24 CFR part 91 and if applicable to the covered program,
indicates that the local jurisdiction's housing market lacks sufficient
affordable housing opportunities for households having a size and
income similar to the family seeking the deferral.
(3) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate
deferral period shall not exceed a period of three years.
(4) Notification requirements for beginning of each deferral
period. At the beginning of each deferral period, the project owner
must inform the family of its ineligibility for financial assistance
and offer the family information concerning, and referrals to assist in
finding, other affordable housing.
(5) Determination of availability of affordable housing at end of
each deferral period. Before the end of each deferral period, the
project owner must:
(i) Make a determination of the availability of affordable housing
of appropriate size based on the vacancy rate for affordable housing of
appropriate size in the housing market for the area in which the
project is located, the CHAS (if applicable), the owner's own knowledge
of the availability of affordable housing, and on evidence of the
tenant family's efforts to locate such housing. (Affordable housing
will be determined to be available if the vacancy rate is five percent
or greater, or if the CHAS (if applicable), the owner's knowledge and
the tenant's evidence indicate that other affordable housing is
available) and
(ii) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination will
be deferred again (provided that the granting of another deferral will
not result in aggregate deferral periods that exceed three years), and
a determination was made that other affordable housing is not
available; or
(iii) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination of
financial assistance will not be deferred because either granting
another deferral will result in aggregate deferral periods that exceed
three years, or a determination has been made that other affordable
housing is available.
(d) Notification of decision on family preservation assistance. A
project owner shall notify the family of its decision concerning the
family's qualification for assistance under this section. If the family
is ineligible for assistance under this section, the notification shall
state the reasons, which must be based on relevant factors. For tenant
families, the notice also shall inform the family of any applicable
appeal rights.
Sec. 200.188 Proration of assistance.
(a) Applicability. This section applies to a mixed family other
than a family receiving continued assistance under Sec. 200.187(b), or
other than a family for which termination of assistance is temporarily
deferred under Sec. 200.187(c).
(b) Method for prorating assistance. For each of the three types of
assistance covered by this subpart, the project owner shall prorate the
family's assistance as follows:
(1) Proration under Rent Supplement Program. If the household
participates in the Rent Supplement Program, the rent supplement paid
on the household's behalf shall be the rent supplement the household
would otherwise be entitled to, multiplied by a fraction, the
denominator of which is the number of people in the household and the
numerator of which is the number of eligible persons in the household.
(2) Proration under Section 235 Program. If the household
participates in the Section 235 Program, the interest reduction
payments paid on the household's behalf shall be the payments the
household would otherwise be entitled to, multiplied by a fraction the
denominator of which is the number of people in the household and the
numerator of which is the number of eligible persons in the household;
(3) Proration under Section 236 Program without the benefit of
additional assistance. If the household participates in the Section 236
Program without the benefit of any additional assistance, the
household's rent shall be increased above the rent the household would
otherwise pay by an amount equal to the difference between the market
rate rent for the unit and the rent the household would otherwise pay
multiplied by a fraction the denominator of which is the number of
people in the household and the numerator of which is the number of
ineligible persons in the household;
(4) Proration under Section 236 Program with the benefit of
additional assistance. If the household participates in the Section 236
Program with the benefit of additional assistance under the rent
supplement, rental assistance payment or Section 8 programs, the
household's rent shall be increased above the rent the household would
otherwise pay by:
(i) An amount equal to the difference between the market rate rent
for the unit and the basic rent for the unit multiplied by a fraction,
the denominator of which is the number of people in the household, and
the numerator of which is the number of ineligible persons in the
household, plus;
(ii) An amount equal to the rent supplement, housing assistance
payment or rental assistance payment the household would otherwise be
entitled to multiplied by a fraction, the denominator of which is the
number of people in the household and the numerator of which is the
number of ineligible persons in the household.
Sec. 200.189 Prohibition of assistance to noncitizen students.
(a) General. The provisions of Secs. 200.187 and 200.188,
permitting continued assistance, prorated assistance or temporary
deferral of termination of assistance for certain families, do not
apply to any person who is determined to be a noncitizen student, as
defined in paragraph (b) of this section, or the family of the
noncitizen student, as described in paragraph (c) of this section.
(b) Noncitizen student. For purposes of this part, a noncitizen
student is defined as a noncitizen who:
(1) Has a residence in a foreign country that the person has no
intention of abandoning;
(2) Is a bona fide student qualified to pursue a full course of
study; and
(3) Is admitted to the United States temporarily and solely for
purposes of pursuing such a course of study at an established
institution of learning or other recognized place of study in the
United States, particularly designated by such person and approved by
the Attorney General after consultation with the Department of
Education of the United States, which institution or place of study
shall have agreed to report to the Attorney General the termination of
attendance of each nonimmigrant student (and if any such institution of
learning or place of study fails to make such reports promptly the
approval shall be withdrawn).
(c) Family of noncitizen student. The prohibition on providing
assistance to a noncitizen student as described in paragraph (a) of
this section also extends to the noncitizen spouse of the noncitizen
student and minor children of any noncitizen student if the spouse or
children are accompanying the student or following to join such
student. The prohibition on providing assistance to a noncitizen
student does not extend to the citizen spouse of the noncitizen student
and the children of the citizen spouse and noncitizen student.
Sec. 200.190 Compliance with nondiscrimination requirements.
The project owner shall administer the restrictions on use of
assisted housing by noncitizens with ineligible immigration status
imposed by this part in conformity with the nondiscrimination
requirements of, including, but not limited to, title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-2000d-5), section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), the Fair Housing Act (42
U.S.C. 3601-3619), and the regulations implementing these statutes, and
other civil rights statutes cited in the applicable program
regulations. These statutes prohibit, among other things,
discriminatory practices on the basis of race, color, national origin,
sex, religion, age, disability and familial status in the provision of
housing.
Sec. 200.191 Protection from liability for project owners, State and
local government agencies and officials.
(a) Protection from liability for project owners. HUD will not take
any compliance, disallowance, penalty, or other regulatory action
against a project owner with respect to any error in its determination
of eligibility for financial assistance based on citizenship or
immigration status:
(1) If the project owner established eligibility based upon
verification of eligible immigration status through the verification
system described in Sec. 200.185;
(2) Because the project owner was required to provide an
opportunity for the family to submit evidence in accordance with
Sec. 200.183;
(3) Because the project owner was required to wait for completion
of INS verification of immigration status in accordance with
Sec. 200.185;
(4) Because the project owner was required to wait for completion
of the INS appeal process provided in accordance with Sec. 200.186(e);
or
(5) Because the project owner was required to provide an informal
hearing in accordance with Sec. 200.186(f).
(b) Protection from liability for State and local government
agencies and officials. State and local government agencies and
officials shall not be liable for the design or implementation of the
verification system described in Sec. 200.185 and the informal hearings
provided under Sec. 200.186, as long as the implementation by the State
and local government agency or official is in accordance with
prescribed HUD rules and requirements.
Sec. 200.192 Liability of ineligible tenants for reimbursement of
benefits.
Where a tenant has received the benefit of HUD financial assistance
to which the tenant was not entitled because the tenant intentionally
misrepresented ``eligible status'' (as defined in Sec. 200.182), the
ineligible tenant is responsible for reimbursing HUD for the assistance
improperly paid. If the amount of the assistance is substantial, the
project owner is encouraged to refer the case to the HUD Regional
Inspector General's office for further investigation. Possible criminal
prosecution may follow based on the False Statements Act (18 U.S.C.
1001 and 1010).
PART 215--RENT SUPPLEMENT PAYMENTS
3. The authority citation for part 215 would continue to read as
follows:
Authority: 12 U.S.C. 1701s; 42 U.S.C. 3535(d).
4. In Sec. 215.20, paragraph (b)(2) would be amended by adding a
new sentence at the end to read as follows:
Sec. 215.20 Qualified tenant.
* * * * *
(b) * * *
(2) * * * For restrictions on financial assistance to noncitizens
with ineligible immigration status, see part 200, subpart G, of this
chapter.
* * * * *
5. In Sec. 215.25, paragraph (a)(1) would be revised to read as
follows:
Sec. 215.25 Determination of eligibility.
(a)(1) The housing owner shall determine eligibility following
procedures prescribed by the Commissioner when processing applications
for admission and tenant applications for assistance. The requirements
of part 200, subpart G, of this chapter govern the submission and
verification of citizenship information and eligible immigration status
for applicants, and the procedures for denial or proration of
assistance based upon a failure to establish eligible immigration
status.
* * * * *
6. Section 215.55 would be amended by adding two sentences at the
end of paragraph (a), by adding one sentence at the end of paragraph
(b), and by adding two sentences at the end of paragraph (c), to read
as follows:
Sec. 215.55 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of part 200, subpart G, of this chapter concerning
obtaining and processing information on the citizenship or eligible
immigration status of all family members. Thereafter, at each regular
reexamination, the owner shall follow the requirements of part 200,
subpart G, of this chapter, concerning obtaining and processing
information on the citizenship or eligible immigration status of any
new family member.
(b) * * * At any interim reexamination after [insert the effective
date of the final rule] when a new family member has been added, the
owner shall follow the requirements of part 200, subpart G, of this
chapter, concerning obtaining and processing information on the
citizenship or eligible immigration status of the new family member.
(c) Termination of assistance. * * * Assistance also may be
terminated in accordance with any requirements of the lease or with HUD
requirements. The procedures of part 200, subpart G, of this chapter,
apply when termination is based upon a determination that the tenant
does not have eligible immigration status.
7. A new Sec. 215.80 would be added to read as follows:
Sec. 215.80 Determination of eligible immigration status of applicants
and tenants; protection from liability.
(a) Housing owner's obligation to make determination. A housing
owner shall obtain and verify information regarding the citizenship or
immigration status of applicants and tenants in accordance with the
procedures of part 200, subpart G, of this chapter.
(b) Protection from liability. HUD will not take any compliance,
disallowance, penalty or other regulatory action against a housing
owner with respect to any error in its determination that an individual
is eligible for financial assistance based upon citizenship or eligible
immigration status, as provided in Sec. 200.189 of this chapter.
PART 235--MORTGAGE INSURANCE AND ASSISTANCE PAYMENTS FOR HOME
OWNERSHIP AND PROJECT REHABILITATION
8. The authority citation for part 235 would continue to read as
follows:
Authority: 12 U.S.C. 1715b, and 1715z; 42 U.S.C. 3535(d).
9. Section 235.2 would be amended by adding a new paragraph (f) to
read as follows:
Sec. 235.2 Basic program outline.
* * * * *
(f) Evidence of citizenship or eligible immigration status shall be
submitted by the applicant or mortgagor and verified in accordance with
part 200, subpart G of this chapter and Sec. 235.13.
10. Section 235.10 would be amended by adding a new paragraph
(c)(2)(iii) and by adding a sentence at the end of paragraph (e), to
read as follows:
Sec. 235.10 Eligible mortgagors.
* * * * *
(c) * * *
(2) * * *
(iii) A new member is added to the family in which case evidence of
citizenship or eligible immigration status also shall be submitted, in
accordance with part 200, subpart G, of this chapter.
* * * * *
(e) * * * Eligibility for assistance under this subpart also
requires citizenship or eligible immigration status, as determined in
accordance with part 200, subpart G, of this chapter, except that
citizenship or eligible immigration status shall not be required of a
mortgagor whose assistance contract was executed before [insert the
effective date of the final rule] and remains unchanged after that
date. (See Sec. 235.13(c).)
* * * * *
11. A new Sec. 235.13 would be added to read as follows:
Sec. 235.13 Special requirements concerning citizenship or eligible
immigration status.
(a) General. Except as may be supplemented by the provisions of
this section, the requirements of 24 CFR part 200, subpart G,
concerning restrictions on the use of assisted housing by noncitizens
with ineligible immigration status are applicable to mortgagees and
mortgagors covered by the Section 235 Program with the exception of
mortgagors:
(1) Whose assistance contracts were executed before [insert the
effective date of the final rule] and remain unchanged after that date;
or
(2) Who refinance their section 235 mortgages, which were executed
before [insert effective date of final rule] and whose assistance
contracts were unchanged after that date, with mortgages insured under
section 235(r) of the National Housing Act (12 U.S.C. 1715z).
(b) Notification of requirements to submit evidence of eligible
status--(1) Notice to applicants. A mortgagee shall notify applicants,
including applicants whose names are on a waiting list on [insert the
effective date of the final rule], that financial assistance is
contingent upon the submission and verification, as appropriate, of
evidence of eligible citizenship and immigration status as required
under 24 CFR part 200, subpart G.
(2) Notice to mortgagors. A mortgagee also shall notify mortgagors
(except Section 235(r) mortgagors) whose contracts are executed after
[insert the effective date of the final rule] that continued financial
assistance is contingent upon the submission and verification, as
appropriate, of the evidence of eligible status required in 24 CFR part
200, subpart G. This notice requirement also shall apply to mortgagors
whose contracts are revised, at the request of the mortgagor, after
[insert the effective date of the final rule].
(c) Submission of evidence of eligible status--(1) When evidence of
eligible immigration status is to be submitted. A mortgagee shall
obtain evidence concerning an applicant or mortgagor's citizenship or
eligible immigration status, as required by 24 CFR part 200, subpart G,
at the following times:
(i) Application for assistance; and
(ii) The first recertification of family income and composition
conducted after [insert the effective date of the final rule], in
accordance with Sec. 235.10 or Sec. 235.350. The requirements of this
section are not applicable to mortgagors whose assistance contracts
were executed before [insert the effective date of the final rule] and
remain unchanged after that date, or to mortgagors who refinance their
section 235 mortgages, which were executed before [insert the effective
date of the final rule] and whose assistance contracts remain unchanged
after such date, with mortgages insured under section 235(r) of the
National Housing Act.
(2) Extensions of time to submit evidence of eligible status. The
provisions of Sec. 200.183(e) of this chapter, concerning extension of
time within which to submit evidence of eligible status are applicable.
(d) Certification by mortgagee--(1) General. The mortgagee shall
verify the evidence submitted in the case of an applicant or mortgagor
declaring eligible immigration status, in accordance with the
requirements of part 200, subpart G, of this chapter, and certify to
the Secretary that the required information concerning citizenship or
eligible immigration status has been submitted and verified (if
applicable) for all persons for whom the evidence is required. If the
applicant or mortgagor's citizenship or eligible immigration status is
not established as a result of the process required under 24 CFR part
200, subpart G, the mortgagee shall notify the applicant or mortgagor
in accordance with the requirements of 24 CFR part 200, subpart G
concerning notification of the possibility of denial or termination of
assistance, and, if applicable, of additional assistance that may be
available to the applicant or mortgagor.
(2) Invalid certification. (i) If the mortgagee has certified to
the Secretary in accordance with paragraph (d)(1) of this section that
the required information concerning citizenship or eligible immigration
status has been submitted and verified (if applicable), and the
Secretary subsequently determines that the procedures required by this
section and 24 CFR part 200, subpart G, were not followed, the
following actions will be taken:
(A) The mortgagee will be required to repay to the Secretary the
full amount of assistance payments made on behalf of the mortgagor
under this part; and
(B) No additional assistance payments may be made on behalf of the
mortgagor.
(ii) The Secretary may permit the resumption of assistance payments
if all persons residing in the dwelling whose status was not determined
to be eligible have moved from the dwelling unit, or their status has
been determined to be eligible, in accordance with 24 CFR part 200,
subpart G.
(iii) If the mortgagee has certified to the Secretary in accordance
with paragraph (c)(1) of this section that the required information
concerning citizenship or eligible immigration status has been
submitted and verified (if applicable), and the Secretary subsequently
determines that the mortgagor's eligible status determination was based
on fraudulent documents, or was otherwise defective, although the
determination was made in accordance with required procedures, the
following actions will be taken:
(A) The mortgagor will be required to repay to the Secretary the
full amount of assistance payments made on behalf of the mortgagor
under this part; and
(B) No additional assistance payments may be made on behalf of the
mortgagor.
(iv) The Secretary's right to repayment from the mortgagor under
paragraph (c)(2)(i) of this section shall not affect or limit the
Secretary's right to refund of overpaid assistance payments from the
mortgagee as provided in Sec. 235.361(b).
(e) Mortgage insurance commitments. Commitments to insure mortgages
under this part will not be issued or extended unless the mortgagee has
made the certification required under paragraph (c) of this section.
(f) Other related provisions. See Sec. 235.10 for eligibility
requirements, specifically citizenship and eligible immigration status;
Sec. 235.350 for the mortgagor's required recertification, including
provision of information concerning eligible immigration status; and
generally part 200, subpart G, of this chapter, for the provisions on
restrictions to providing assistance to noncitizens with ineligible
immigration status.
12. In Sec. 235.325, a new paragraph (c) would be added to read as
follows:
Sec. 235.325 Qualified cooperative members.
* * * * *
(c) Eligibility as a cooperative member under this subpart also
requires eligible status with respect to citizenship or eligible
immigration status determined in accordance with 24 CFR part 200,
subpart G. (See Sec. 235.13.)
13. Section 235.350 would be amended by adding a new paragraph
(a)(2)(iii) to read as follows:
Sec. 235.350 Mortgagor's required recertification.
(a) * * *
(2) * * *
(iii) A new member is added to the family who is not born in the
United States (except for a mortgagor described in Sec. 235.13(a) (1)
or (2)).
* * * * *
14. In Sec. 235.375, a new paragraph (b)(6) would be added to read
as follows:
Sec. 235.375 Termination, suspension, or reinstatement of the
assistance payments contract.
* * * * *
(b) * * *
(6) Failure to provide evidence of citizenship or eligible
immigration status in accordance with 24 CFR part 200, subpart G:
(i) For a new member of the family, other than a child born in the
United States, except with respect to a mortgagor described under
Sec. 235.13(a) (1) and (2);
(ii) At the first recertification of an assistance contract, except
with respect to a mortgagor described in Sec. 235.13(a) (1) and (2); or
(iii) Upon modification of an existing assistance contract.
* * * * *
PART 236--MORTGAGE INSURANCE AND INTEREST REDUCTION PAYMENTS FOR
RENTAL PROJECTS
15. The authority citation for part 236 would continue to read as
follows:
Authority: 12 U.S.C. 1715b and 1715z-1; 42 U.S.C. 3535(d).
16. In Sec. 236.2, the definition of ``qualified tenant'' would be
amended by adding a new paragraph (c) to read as follows:
Sec. 236.2 Definitions.
* * * * *
Qualified tenant. * * *
(c) For restrictions on financial assistance to noncitizens with
ineligible immigration status, see 24 CFR part 200, subpart G.
* * * * *
17. In Sec. 236.70, paragraph (a)(1) would be revised to read as
follows:
Sec. 236.70 Occupancy requirements.
(a)(1) The housing owner shall determine eligibility following
procedures prescribed by the Commissioner when processing applications
for admission. The requirements of 24 CFR part 200, subpart G, govern
the submission and verification of information related to citizenship
and eligible immigration status for those applicants who seek admission
at a below market rent.
* * * * *
18. Section 236.80 would be amended by adding two sentences at the
end of paragraph (a), by adding one sentence at the end of paragraph
(b), and by adding three sentences at the end of paragraph (c), to read
as follows:
Sec. 236.80 Reexamination of income.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 200, subpart G, concerning obtaining and
processing information on the citizenship or eligible immigration
status of all family members. Thereafter, at each regular
reexamination, the owner shall follow the requirements of 24 CFR part
200, subpart G, concerning obtaining and processing information on the
citizenship or eligible immigration status of any new family member.
(b) * * * At any interim reexamination after [insert the effective
date of the final rule] when there is a new family member, the owner
shall follow the requirements of 24 CFR part 200, subpart G, concerning
obtaining and processing information on the citizenship or eligible
immigration status of the new family member.
(c) * * * Assistance also may be terminated in accordance with any
requirements of the lease or with HUD requirements. When termination is
based upon a determination that the tenant does not have eligible
immigration status, the procedures of 24 CFR part 200, subpart G,
apply. The procedures include the provision of assistance to certain
mixed families (families whose members include those with eligible
immigration status, and those without eligible immigration status) in
lieu of termination.
19. In Sec. 236.710, a new sentence would be added at the end of
this section to read as follows:
Sec. 236.710 Qualified tenant.
* * * For restrictions on financial assistance to noncitizens with
ineligible immigration status, see 24 CFR part 200, subpart G.
20. In Sec. 236.715, paragraph (a) would be revised to read as
follows:
Sec. 236.715 Determination of eligibility.
(a) The housing owner shall determine eligibility following
procedures prescribed by the Commissioner when processing applications
for admission and tenant applications for assistance. The requirements
of 24 CFR part 200, subpart G, govern the submission and verification
of information related to citizenship and eligible immigration status
for applicants, and the procedures for denial of assistance based upon
a failure to establish eligible immigration status.
* * * * *
21. A new Sec. 236.765 would be added to subpart D read as follows:
Sec. 236.765 Determination of eligible immigration status of
applicants and tenants; protection from liability.
(a) Housing owner's obligation to make determination. A housing
owner shall obtain and verify information regarding the citizenship or
immigration status of applicants and tenants in accordance with the
procedures of 24 CFR part 200, subpart G.
(b) Protection from liability. HUD will not take any compliance,
disallowance, penalty or other regulatory action against a housing
owner with respect to any error in its determination to make an
individual eligible for financial assistance based upon citizenship or
eligible immigration status, as provided in 24 CFR part 200, subpart G.
PART 247--EVICTIONS FROM CERTAIN SUBSIDIZED AND HUD-OWNED PROJECTS
22. The authority citation for part 247 would continue to read as
follows:
Authority: 12 U.S.C. 1701s, 1715b, 1715l, and 1715z-1; 42 U.S.C.
1437a, 1437c, 1437f and 3535(d).
23. In Sec. 247.3, paragraph (c)(3) would be revised to read as
follows:
Sec. 247.3 Entitlement of tenants to occupancy.
* * * * *
(c) * * *
(3) Failure of the tenant to supply on time all required
information on the income and composition, or eligibility factors, of
the tenant household (including, but not limited to, failure to submit
required evidence of citizenship or eligible immigration status, in
accordance with 24 CFR part 200, subpart G, failure to meet the
disclosure and verification requirements for Social Security Numbers,
as provided by 24 CFR part 200, subpart T, or 24 CFR part 750 (as
appropriate), or failure to sign and submit consent forms for the
obtaining of wage and claim information from State Wage Information
Collection Agencies, as provided by 24 CFR part 200, subpart V, or 24
CFR part 760 (as appropriate), or to knowingly provide incomplete or
inaccurate information; and
* * * * *
PART 812--DEFINITION OF FAMILY AND OTHER RELATED TERMS; OCCUPANCY
BY SINGLE PERSONS
24. The authority citation for part 812 would be revised to read as
follows:
Authority: 42 U.S.C. 1436a, 1437a and 3535(d).
25. In Sec. 812.1, paragraph (a) would be amended by removing the
word ``and'' following the semicolon in paragraph (a)(1); by removing
the period at the end of paragraph (a)(2) and replacing with ``and'';
and by adding a new paragraph (a)(3), to read as follows:
Sec. 812.1 Purpose and applicability.
(a) * * *
(3) Implements the statutory prohibition against making assistance
under the United States Housing Act of 1937 (``Act'') (42 U.S.C. 1437)
available for the benefit of noncitizens with ineligible immigration
status.
* * * * *
26. Section 812.2 would be amended by adding definitions in
alphabetical order for the terms ``Child,'' ``Citizen,'' ``Evidence of
citizenship or eligible immigration status,'' ``HA,'' ``Head of
household,'' ``HUD,'' ``INS,'' ``Mixed family,'' ``National,''
``Noncitizen,'' and ``Responsible entity,'' ``Section 214'' and
``Section 214 covered programs'' to read as follows:
Sec. 812.2 Definitions.
* * * * *
Child. A member of the family, other than the family head or
spouse, who is under 18 years of age.
Citizen. A citizen or national of the United States.
* * * * *
Evidence of citizenship or eligible immigration status. The
documents which must be submitted to evidence citizenship or eligible
immigration status. (See Sec. 812.6(b).)
* * * * *
HA. A housing authority--either a public housing agency or an
Indian housing authority, or both.
* * * * *
Head of household. The adult member of the family who is the head
of the household for purposes of determining income eligibility and
rent.
HUD. The Department of Housing and Urban Development.
INS. The U.S. Immigration and Naturalization Service.
* * * * *
Mixed family. A family whose members include those with citizenship
or eligible immigration status, and those without citizenship or
eligible immigration status.
National. A person who owes permanent allegiance to the United
States, for example, as a result of birth in a United States territory
or possession.
Noncitizen. A person who is neither a citizen nor national of the
United States.
Responsible entity. The person or entity responsible for
administering the restrictions on providing assistance to noncitizens
with ineligible immigration status:
(1) For the Section 8 Certificate, the Section 8 Housing Voucher,
and the Section 8 Moderate Rehabilitation programs, the housing
authority (HA) administering the program under an ACC with HUD.
(2) For all other Section 8 programs, the owner.
Section 214. Section 214 of the Housing and Community Development
Act of 1980, as amended (42 U.S.C. 1436a). Section 214 restricts HUD
from making financial assistance available for noncitizens unless they
meet one of the six statutory categories of eligible immigration
status.
Section 214 covered programs. Programs to which the restrictions
imposed by section 214 apply are programs that make available financial
assistance pursuant to the United States Housing Act of 1937 (42 U.S.C.
1437-440), section 235 or section 236 of the National Housing Act (12
U.S.C. 1715z and 1715z-1) and section 101 of the Housing and Urban
Development Act of 1965 (12 U.S.C. 1701s).
* * * * *
27. Part 812 would be amended by redesignating Secs. 812.1 through
812.4 as subpart A, and by adding the subpart heading to read,
``Subpart A--General,'' and by adding a new subpart B, consisting of
Secs. 812.5 through 812.15, to read as follows:
Subpart B--Restrictions on Assistance to Noncitizens
Sec.
812.5 General.
812.5a Requirements concerning documents.
812.6 Submission of evidence of citizenship or eligible immigration
status.
812.7 Documents of eligible immigration status.
812.8 Verification of eligible immigration status.
812.9 Delay, denial or termination of assistance.
812.10 Preservation of mixed families and other families.
812.11 Proration of assistance.
812.12 Prohibition of assistance to noncitizen students.
812.13 Compliance with nondiscrimination requirements.
812.14 Protection from liability for responsible entities, State,
local, and tribal government agencies and officials.
812.15 Liability of ineligible families for reimbursement of
benefits.
Subpart B--Restrictions on Assistance to Noncitizens
Sec. 812.5 General.
(a) Restrictions on assistance. Assistance provided under a section
214 covered program is restricted to:
(1) Citizens; or
(2) Noncitizens who have eligible immigration status in one of the
following categories:
(i) A noncitizen lawfully admitted for permanent residence, as
defined by section 101(a)(20) of the Immigration and Nationality Act
(INA), as an immigrant, as defined by section 101(a)(15) of the INA (8
U.S.C. 1101(a)(20) and 1101(a)(15), respectively) [immigrants]. (This
category includes a noncitizen admitted under section 210 or 210A of
the INA (8 U.S.C. 1160 or 1161), [special agricultural worker], who has
been granted lawful temporary resident status);
(ii) A noncitizen who entered the United States before January 1,
1972, or such later date as enacted by law, and has continuously
maintained residence in the United States since then, and who is not
ineligible for citizenship, but who is deemed to be lawfully admitted
for permanent residence as a result of an exercise of discretion by the
Attorney General under section 249 of the INA (8 U.S.C. 1259);
(iii) A noncitizen who is lawfully present in the United States
pursuant to an admission under section 207 of the INA (8 U.S.C. 1157)
[refugee status]; pursuant to the granting of asylum (which has not
been terminated) under section 208 of the INA (8 U.S.C. 1158) [asylum
status]; or as a result of being granted conditional entry under
section 203(a)(7) of the INA (8 U.S.C. 1153(a)(7)) before April 1,
1980, because of persecution or fear of persecution on account of race,
religion, or political opinion or because of being uprooted by
catastrophic national calamity;
(iv) A noncitizen who is lawfully present in the United States as a
result of an exercise of discretion by the Attorney General for
emergent reasons or reasons deemed strictly in the public interest
under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) [parole
status];
(v) A noncitizen who is lawfully present in the United States as a
result of the Attorney General's withholding deportation under section
243(h) of the INA (8 U.S.C. 1253(h)) [threat to life or freedom]; or
(vi) A noncitizen lawfully admitted for temporary or permanent
residence under section 245A of the INA (8 U.S.C. 1255a) [amnesty
granted under INA 245A].
(b) Family eligibility for assistance. (1) A family shall not be
eligible for assistance unless every member of the family residing in
the unit is determined to have eligible status, as described in
paragraph (a) of this section;
(2) Despite the ineligibility of one or more family members, a
mixed family may be eligible for one of the three types of assistance
provided in Sec. 812.10. A family without any eligible members and
receiving assistance on [insert the effective date of the final rule]
may be eligible for temporary deferral of termination of assistance as
provided in Sec. 812.10.
Sec. 812.5a Requirements concerning documents.
For any notice or document (decision, declaration, consent form,
etc.) that Secs. 812.5 through 812.15 require a responsible entity to
provide to an individual, or require that the responsible entity obtain
the signature of the individual, the responsible entity, where
feasible, must arrange for the notice or document to be provided to the
individual in a language that is understood by the individual if the
individual is not proficient in English. (See 24 CFR 8.6 of HUD's
regulations for requirements concerning communications with persons
with disabilities.)
Sec. 812.6 Submission of evidence of citizenship or eligible
immigration status.
(a) General. Eligibility for assistance or continued assistance
under a section 214 covered program is contingent upon a family's
submission to the responsible entity of the documents described in
paragraph (b) of this section for each family member. If one or more
family members do not have citizenship or eligible immigration status,
the family members may exercise the election not to contend to have
eligible immigration status as provided in paragraph (e) of this
section, and the provisions of Sec. 812.10 shall apply.
(b) Evidence of citizenship or eligible immigration status. Each
family member, regardless of age, must submit the following evidence to
the responsible entity:
(1) For citizens, the evidence consists of a signed declaration of
U.S. citizenship;
(2) For noncitizens who are 62 years of age or older or who will be
62 years of age or older and receiving assistance under a section 214
covered program on [insert the effective date of the final rule], the
evidence consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document.
(3) For all other noncitizens, the evidence consists of:
(i) A signed declaration of eligible immigration status;
(ii) The INS documents listed in Sec. 812.7; and
(iii) A signed verification consent form.
(c) Declaration. For each family member, the family must submit to
the responsible entity a written declaration, signed under penalty of
perjury, by which the family member declares whether he or she is a
U.S. citizen or a noncitizen with eligible immigration status.
(1) For each adult, the declaration must be signed by the adult.
(2) For each child, the declaration must be signed by an adult
residing in the assisted dwelling unit who is responsible for the
child.
(d) Verification consent form--(1) Who signs. Each noncitizen who
declares eligible immigration status, must sign a verification consent
form as follows:
(i) For each adult, the form must be signed by the adult.
(ii) For each child, the form must be signed by an adult member of
the family residing in the assisted dwelling unit who is responsible
for the child.
(2) Notice of release of evidence by responsible entity. The
verification consent form shall provide that evidence of eligible
immigration status may be released by the responsible entity, without
responsibility for the further use or transmission of the evidence by
the entity receiving it, to:
(i) HUD as required by HUD;
(ii) The INS; and, if applicable;
(iii) Another Federal agency, or a State or local government agency
in accordance with Federal, State or local law that requires the
release of the evidence to that agency.
(iv) Notice of release of evidence by HUD. The verification consent
form also shall notify the individual of the possible release of
evidence of eligible immigration status by HUD. Evidence of eligible
immigration status shall only be released to the INS for purposes of
establishing eligibility for financial assistance and not for any other
purpose. HUD is not responsible for the further use or transmission of
the evidence or other information by the INS.
(e) Individuals who do not contend to have eligible immigration
status. If one or more members of a family elect not to contend that
they have eligible immigration status and the other members of the
family establish their citizenship or eligible immigration status, the
family may be considered for prorated assistance under Sec. 812.11
despite the fact that no declaration or documentation of eligible
status is submitted by one or more members of the family. The family
must, however, identify to the responsible entity, the family member
(or members) who will elect not to contend that he or she has eligible
immigration status.
(f) Notification of requirements of section 214--(1) When notice is
to be issued. Notification of the requirement to submit evidence of
citizenship or eligible immigration status, as required by this
section, or to elect not to contend that one has eligible immigration
status, as allowed by paragraph (e) of this section, shall be given by
the responsible entity as follows:
(i) Applicant's notice. Notification of the requirement to submit
evidence of eligible status shall be given to each applicant at the
time of application for financial assistance. Families whose
applications are pending on [insert the effective date of the final
rule] shall be notified of the requirements to submit evidence of
eligible status as soon as possible after [insert the effective date of
the final rule].
(ii) Notice to families already receiving assistance. For a family
in occupancy on [insert the effective date of the final rule]
notification of the requirement to submit evidence of eligible status
shall be given to each at the time of, and together with, the
responsible entity's notice of the first regular reexamination after
that date, but not later than one year following [insert the effective
date of the final rule].
(2) Form and content of notice. The notice shall:
(i) State that financial assistance is contingent upon the
submission and verification, as appropriate, of the evidence of
citizenship or eligible immigration status, as required by this
section;
(ii) Describe the type of evidence that must be submitted and state
the time period in which that evidence must be submitted (see paragraph
(g) of this section concerning when evidence must be submitted); and
(iii) State that assistance will be prorated, denied or terminated,
as appropriate, upon a final determination of ineligibility after all
appeals have been exhausted (see Sec. 812.9 concerning INS appeal, and
informal hearing process) or, if appeals are not pursued, at a time to
be specified in accordance with HUD requirements. Families already
receiving assistance also shall be informed of how to obtain assistance
under the preservation of families provisions of Sec. 812.10.
(g) When evidence of eligible status is required to be submitted.
The responsible entity shall require evidence of eligible status to be
submitted at the times specified in paragraph (g) of this section,
subject to any extension granted in accordance with paragraph (h) of
this section.
(1) Applicants. For applicants, the responsible entity must ensure
that evidence of eligible status is submitted not later than the date
the responsible entity anticipates or has knowledge that verification
of other aspects of eligibility for assistance will occur (see
Sec. 812.8(a)).
(2) Families already receiving assistance. For a family already
receiving the benefit of assistance in a covered program on [insert the
effective date of the final rule], the required evidence shall be
submitted at the first regular reexamination after [insert the
effective date of the final rule], in accordance with program
requirements. (See Secs. 850.151, 880.603, 881.603, 882.212, 882.515,
883.704, 884.124, 886.124, 886.324, or 887.357 of this chapter.)
(3) New occupants of assisted units. For any new family members,
the required evidence shall be submitted at the first interim or
regular reexamination following the person's occupancy.
(4) Changing participation in a HUD program. Whenever a family
applies for admission to a section 214 covered program, evidence of
eligible status is required to be submitted in accordance with the
requirements of this part unless the family already has submitted the
evidence to the responsible entity for a covered program.
(5) One-time evidence requirement for continuous occupancy. For
each family member, the family is required to submit evidence of
eligible status one time during continuously assisted occupancy under
any covered program.
(h) Extensions of time to submit evidence of eligible status--(1)
When extension must be granted. The responsible entity shall extend the
time provided in paragraph (g) of this section, to submit evidence of
eligible immigration status if the family member:
(i) Submits the declaration required under Sec. 812.6(b) certifying
that any person for whom required evidence has not been submitted is a
noncitizen with eligible immigration status; and
(ii) Certifies that the evidence needed to support a claim of
eligible immigration status is temporarily unavailable, additional time
is needed to obtain and submit the evidence, and prompt and diligent
efforts will be undertaken to obtain the evidence.
(2) Prohibition on indefinite extension period. Any extension of
time, if granted, shall be for a specific period of time. The
additional time provided should be sufficient to allow the family the
time to obtain the evidence needed. The responsible entity's
determination of the length of the extension needed shall be based on
the circumstances of the individual case.
(3) Grant or denial of extension to be in writing. The responsible
entity's decision to grant or deny an extension as provided in
paragraph (h)(1) of this section shall be issued to the family by
written notice. If the extension is granted, the notice shall specify
the extension period granted. If the extension is denied, the notice
shall explain the reasons for denial of the extension.
(i) Failure to submit evidence or establish eligible immigration
status. If the family fails to submit required evidence of eligible
immigration status within the time period specified in the notice, or
any extension granted in accordance with paragraph (h) of this section,
or if the evidence is timely submitted but fails to establish eligible
immigration status, the responsible entity shall proceed to deny,
prorate or terminate assistance, or provide continued assistance or
temporary deferral of termination of assistance, as appropriate, in
accordance with the provisions of Secs. 812.9 and 812.10 respectively.
For all section 8 programs, denial or termination of assistance shall
be in accordance with the procedures of Sec. 812.9.
Sec. 812.7 Documents of eligible immigration status.
(a) General. A responsible entity shall request and review original
documents of eligible immigration status. The responsible entity shall
retain photocopies of the documents for its own records and return the
original documents to the family.
(b) Acceptable evidence of eligible immigration status. The
original of one of the following documents is acceptable evidence of
eligible immigration status, subject to verification in accordance with
Sec. 812.8:
(1) Form I-551, Alien Registration Receipt Card (for permanent
resident aliens);
(2) Form I-94, Arrival-Departure Record, with one of the following
annotations:
(i) ``Admitted as Refugee Pursuant to Section 207'';
(ii) ``Section 208'' or ``Asylum'';
(iii) ``Section 243(h)'' or ``Deportation stayed by Attorney
General'';
(iv) ``Paroled Pursuant to Sec. 212(d)(5) of the INA'';
(3) If Form I-94, Arrival-Departure Record, is not annotated, then
accompanied by one of the following documents:
(i) A final court decision granting asylum (but only if no appeal
is taken);
(ii) A letter from an INS asylum officer granting asylum (if
application is filed on or after October 1, 1990) or from an INS
district director granting asylum (if application filed before October
1, 1990);
(iii) A court decision granting withholding or deportation; or
(iv) A letter from an INS asylum officer granting withholding of
deportation (if application filed on or after October 1, 1990).
(4) Form I-688, Temporary Resident Card, which must be annotated
``Section 245A'' or ``Section 210'';
(5) Form I-688B, Employment Authorization Card, which must be
annotated ``Provision of Law 274a.12(11)'' or ``Provision of Law
274a.12'';
(6) A receipt issued by the INS indicating that an application for
issuance of a replacement document in one of the above-listed
categories has been made and the applicant's entitlement to the
document has been verified; or
(c) Other acceptable evidence. If other documents are determined to
constitute acceptable evidence of eligible immigration status, they
will be announced by HUD in a notice published in the Federal Register.
Sec. 812.8 Verification of eligible immigration status.
(a) When verification is to occur. Verification of eligible
immigration status shall be conducted by the responsible entity
simultaneously with verification of other aspects of eligibility for
assistance under a Section 214 covered program. (See Sec. 812.6(g).)
The responsible entity shall verify eligible immigration status in
accordance with the INS procedures described in this section.
(b) Primary verification--(1) Automated verification system.
Primary verification of the immigration status of the person is
conducted by the responsible entity through the INS automated system
(INS Systematic for Alien Verification for Entitlements (SAVE)). The
INS SAVE system provides access to names, file numbers and admission
numbers of noncitizens.
(2) Failure of primary verification to confirm eligible immigration
status. If the INS SAVE system does not verify eligible immigration
status, secondary verification must be performed.
(c) Secondary verification--(1) Manual search of INS records.
Secondary verification is a manual search by the INS of its records to
determine an individual's immigration status. The responsible entity
must request secondary verification, within 10 days of receiving the
results of the primary verification, if the primary verification system
does not confirm eligible immigration status, or if the primary
verification system verifies immigration status that is ineligible for
assistance under a covered Section 214 covered program.
(2) Secondary verification initiated by responsible entity.
Secondary verification is initiated by the responsible entity
forwarding photocopies of the original INS documents listed in
Sec. 812.7 (front and back), attached to the INS document verification
request form G-845S (Document Verification Request), to a designated
INS office for review. (Form G-845S is available from the local INS
Office.)
(3) Failure of secondary verification to confirm eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the responsible entity shall issue to the
family the notice described in Sec. 812.9(d), which includes
notification of appeal to the INS of the INS finding on immigration
status (see Sec. 812.9(d)(4)).
(d) Exemption from liability for INS verification. The responsible
entity shall not be liable for any action, delay, or failure of the INS
in conducting the automated or manual verification.
Sec. 812.9 Delay, denial, or termination of assistance.
(a) General. Assistance to a family may not be delayed, denied, or
terminated because of the immigration status of a family member except
as provided in this section.
(b) Restrictions on delay, denial, or termination of assistance--
(1) General. Assistance to an applicant shall not be delayed or denied,
and assistance to a tenant shall not be delayed, denied, or terminated,
on the basis of ineligible immigration status of a family member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the tenant's dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
tenant's dwelling unit;
(iv) The INS appeals process under Sec. 812.9(e) has not been
concluded;
(v) For a tenant, the informal hearing process under Sec. 812.9(f)
has not been concluded;
(vi) Assistance is prorated in accordance with Sec. 812.11;
(vii) Assistance for a mixed family is continued in accordance with
Sec. 812.10; or
(viii) Deferral of termination of assistance is granted in
accordance with Sec. 812.10.
(2) When delay in assistance to an applicant is permissible.
Assistance to an applicant may be delayed after the conclusion of the
INS appeal process, but not denied until the conclusion of the
responsible entity informal hearing process, if an informal hearing is
requested by the family.
(c) Events causing denial or termination of assistance. Assistance
to an applicant shall be denied, and a tenant's assistance shall be
terminated, in accordance with the procedures of this section, upon the
occurrence of any of the following events:
(1) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date specified in
Sec. 812.6(g) or by the expiration of any extension granted in
accordance with Sec. 812.6(h); or
(2) Evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and second verification does not
verify eligible immigration status of a family member; and
(3) The family does not pursue INS appeal or informal hearing
rights as provided in this section; or
(4) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family
member.
(d) Notice of denial or termination of assistance. The notice of
denial or termination of assistance shall advise the family:
(1) That financial assistance will be denied or terminated, and
provide a brief explanation of the reasons for the proposed denial or
termination of assistance;
(2) That the family may be eligible for proration of assistance as
provided under Sec. 812.11;
(3) In the case of a tenant, the criteria and procedures for
obtaining relief under the preservation of families provision in
Sec. 812.10;
(4) That the family has a right to request an appeal to the INS of
the results of secondary verification of immigration status and to
submit additional documentation or a written explanation in support of
the appeal in accordance with the procedures of paragraph (e) this
section;
(5) That the family has a right to request an informal hearing with
the responsible entity either upon completion of the INS appeal or in
lieu of the INS appeal as provided in paragraph (f) of this section;
(6) For applicants, the notice shall advise that assistance may not
be delayed until the conclusion of the INS appeal process, but
assistance may be delayed during the pendency of the responsible entity
informal hearing process.
(e) Appeal to the INS--(1) Submission of request for appeal to
responsible entity. Upon receipt of notification by the responsible
entity that INS secondary verification failed to confirm eligible
immigration status, the family may request an appeal to the INS by
communicating that request to the responsible entity within 14 days of
the date the responsible entity mails or delivers the notice under
paragraph (d) of this section.
(2) Extension of time to request an appeal. The responsible entity
shall extend the period of time for requesting an appeal (for a
specified period) upon good cause shown.
(3) Forwarding the appeal to INS. If the family requests an appeal
to the INS, the responsible entity shall forward to the designated INS
office any additional documentation or written explanation provided by
the family in support of the appeal. This material must include a copy
of the INS document verification request form G-845S (used to process
the secondary verification request) and a cover letter indicating that
the family is requesting an appeal of the INS immigration status
verification results. (Form G-845S is available from the local INS
Office.)
(4) Decision by INS--(i) When decision will be issued. The INS will
issue to the responsible entity a decision within 30 days of its
receipt of documentation concerning the family's appeal of the
verification of immigration status. If, for any reason, the INS is
unable to issue a decision within the 30 day time period, the INS will
inform the responsible entity of the reasons for the delay, and the
responsible entity will inform the family of the reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the responsible entity receives the INS decision, the
responsible entity shall notify the family of the INS determination, of
the reasons for the determination, and of the family's right to request
an informal hearing on the responsible entity's ineligibility
determination in accordance with the procedures of paragraph (f) of
this section.
(5) No delay, denial or termination of assistance until completion
of INS appeal process; direct appeal to INS. Pending the completion of
the INS appeal under this section, assistance may not be delayed,
denied or terminated on the basis of immigration status.
(f) Informal hearing--(1) When request for hearing is to be made.
After notification of the INS decision on appeal, or in lieu of request
of appeal to the INS, the family may request that the responsible
entity provide a hearing. This request must be made either within 14
days of the date the responsible entity mails or delivers the notice
under paragraph (d) of this section, or within 14 days of the mailing
of the INS appeal decision issued in accordance with paragraph (e) of
this section (established by the date of postmark).
(2) Extension of time to request hearing. The responsible entity
shall extend the period of time for requesting a hearing (for a
specified period) upon good cause shown.
(3) Informal hearing procedures. (i) For tenants, the procedures
for the hearing before the responsible entity are set forth in 24 CFR
part 966.
(ii) For applicants, the procedures for the informal hearing before
the responsible entity are as follows:
(A) Hearing before an impartial individual. The applicant shall be
provided a hearing before any person(s) designated by the responsible
entity (including an officer or employee of the responsible entity),
other than a person who made or approved the decision under review, and
other than a person who is a subordinate of the person who made or
approved the decision;
(B) Examination of evidence. The applicant shall be provided the
opportunity to examine and copy, at the applicant's expense and at a
reasonable time in advance of the hearing, any documents in the
possession of the responsible entity pertaining to the applicant's
eligibility status, or in the possession of the INS (as permitted by
INS requirements), including any records and regulations that may be
relevant to the hearing;
(C) Presentation of evidence and arguments in support of eligible
status. The applicant shall be provided the opportunity to present
evidence and arguments in support of eligible status. Evidence may be
considered without regard to admissibility under the rules of evidence
applicable to judicial proceedings;
(D) Controverting evidence of the project owner. The applicant
shall be provided the opportunity to controvert evidence relied upon by
the responsible entity and to confront and cross-examine all witnesses
on whose testimony or information the responsible entity relies;
(E) Representation. The applicant shall be entitled to be
represented by an attorney, or other designee, at the applicant's
expense, and to have such person make statements on the applicant's
behalf;
(F) Interpretive services. The applicant shall be entitled to
arrange for an interpreter to attend the hearing, at the expense of the
applicant or responsible entity, as may be agreed upon by both parties;
(G) Hearing to be recorded. The applicant shall be entitled to have
the hearing recorded by audiotape (a transcript of the hearing may, but
is not required, to be provided by the responsible entity); and
(H) Hearing decision. The responsible entity shall provide the
family with a written final decision, based solely on the facts,
presented at the hearing within 14 days of the date of the informal
hearing. The decision shall state the basis for the decision.
(g) Judicial relief. A decision against a family member, issued in
accordance with paragraphs (e) or (f) of this section, does not
preclude the family from exercising the right, that may otherwise be
available, to seek redress directly through judicial procedures.
(h) Retention of documents. The responsible entity shall retain for
a minimum of 5 years the following documents that may have been
submitted to the responsible entity by the family, or provided to the
responsible entity as part of the INS appeal or the informal hearing
process:
(1) The application for financial assistance;
(2) The form completed by the family for income re-examination;
(3) Photocopies of any original documents (front and back),
including original INS documents;
(4) The signed verification consent form;
(5) The INS verification results;
(6) The request for an INS appeal;
(7) The final INS determination;
(8) The request for an informal hearing; and
(9) The final informal hearing decision.
(i) Termination of assisted occupancy. (1) In the Section 8
programs other than Section 8 Certificate, Housing Voucher, and
Moderate Rehabilitation programs, assisted occupancy is terminated by:
(i) If permitted under the lease, the project owner notifying the
family that because of the termination of assisted occupancy, the
family is required to pay the HUD-approved market rent for the dwelling
unit.
(ii) The project owner and family entering into a new lease without
Section 8 assistance.
(iii) The project owner evicting the family. While the family
continues in occupancy of the unit, the project owner may continue
assistance payments in accordance with the Housing Assistance Payments
contract if judicial action to terminate the tenancy and evict the
family is promptly initiated and diligently pursued by the project
owner in accordance with the terms of the lease. Action by the project
owner to terminate the tenancy and to evict the family shall be in
accordance with HUD regulations and other HUD requirements. For any
jurisdiction, HUD may prescribe a maximum period during which
assistance payments may be continued during eviction proceedings and
may prescribe other standards of reasonable diligence for the
prosecution of eviction proceedings.
(2) In the Section 8 Certificate, Housing Voucher, and Moderate
Rehabilitation programs, assisted occupancy is terminated by
terminating assistance payments. (See provisions of this section
concerning termination of assistance.) The HA shall not make any
additional assistance payments to the project owner after the required
procedures specified in this section have been completed. In addition,
the HA shall not approve a lease, enter into an assistance contract, or
process a portability move for the family after those procedures have
been completed.
Sec. 812.10 Preservation of mixed families and other families.
(a) Assistance available for mixed families--(1) Assistance
available for tenant mixed families. For a mixed family assisted under
a Section 214 covered program on [insert the effective date of the
final rule], one of the following three types of assistance may be
available to the family:
(i) Continued assistance (see paragraph (c) of this section);
(ii) Prorated assistance (see Sec. 812.11); or
(iii) Temporary deferral of termination of assistance (see
paragraph (d) of this section).
(2) Assistance available for applicant mixed families. Prorated
assistance is also available for mixed families applying for assistance
as provided in Sec. 812.11.
(3) Assistance available to other families in occupancy. For
families receiving assistance under a Section 214 covered program on
the [insert the effective date of the final rule] and who have no
members with eligible immigration status, the responsible entity may
grant the family temporary deferral of termination of assistance.
(b) Discretion afforded to provide family preservation assistance--
(1) Project owners. With respect to assistance administered by a
project owner, HUD has the discretion to determine under what
circumstances families are to be provided one of the three forms of
assistance for preservation of the family. HUD is exercising its
discretion by specifying the standards in this section under which a
project owner must provide one of the three types of assistance
described in paragraph (a) of this section to a family.
(2) HAs. With respect to an HA acting as a contract administrator
of a certificate (including project-based certificate), housing
voucher, or Moderate Rehabilitation program (as opposed to an HA
owner), the HA, rather than HUD, has the discretion to determine the
circumstances under which a family will be offered one of these forms
of assistance. The HA must establish its own policy and criteria to
follow in making its decision. In establishing the criteria for
granting continued assistance or temporary deferral of termination of
assistance, the HA must incorporate the statutory criteria, which are
set forth in paragraphs (c) and (d) of this section.
(c) Continued assistance. A mixed family may receive continued
housing assistance if all of the following conditions are met:
(1) The family was receiving assistance under a Section 214 covered
program on [insert the effective date of the final rule];
(2) The family's head of household or spouse has eligible
immigration status as described in Sec. 812.5; and
(3) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(d) Temporary deferral of termination of assistance--(1)
Eligibility for this type of assistance. If a mixed family qualifies
for prorated assistance (and does not qualify for continued
assistance), but decides not to accept prorated assistance, or if a
family has no members with eligible immigration status, the family may
be eligible for temporary deferral of termination of assistance if
necessary to permit the family additional time for the orderly
transition of those family members with ineligible status, and any
other family members involved, to other affordable housing. Other
affordable housing is used in the context of transition of an
ineligible family from a rent level that reflects HUD assistance to a
rent level that is unassisted; the term refers to housing that is not
substandard, that is of appropriate size for the family and that can be
rented for an amount not exceeding the amount that the family pays for
rent, including utilities, plus 25 percent.
(2) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate
deferral period shall not exceed a period of three years.
(3) Notification requirements for beginning of each deferral
period. At the beginning of each deferral period, the responsible
entity must inform the family of its ineligibility for financial
assistance and offer the family information concerning, and referrals
to assist in finding, other affordable housing.
(4) Determination of availability of affordable housing at end of
each deferral period. Before the end of each deferral period, the
responsible entity must:
(i) Make a determination of the availability of affordable housing
of appropriate size based on evidence of conditions which when taken
together will demonstrate an inadequate supply of affordable housing
for the area in which the project is located, the CHAS (if applicable;
the CHAS refers to the Comprehensive Housing Affordability Strategy,
described in 24 CFR part 91), the responsible entity's own knowledge of
the availability of affordable housing, and on evidence of the tenant
family's efforts to locate such housing; and
(ii) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination will
be deferred again (provided that the granting of another deferral will
not result in aggregate deferral periods that exceed three years), and
a determination was made that other affordable housing is not
available; or
(iii) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination of
financial assistance will not be deferred because either granting
another deferral will result in aggregate deferral periods that exceed
three years, or a determination has been made that other affordable
housing is available.
(e) Notification of decision on family preservation assistance. A
responsible entity shall notify the family of its decision concerning
the family's qualification for assistance under this section. If the
family is ineligible for assistance under this section, the
notification shall state the reasons, which must be based on relevant
factors. For tenant families, the notice also shall inform the family
of any applicable appeal rights. (For HAs administering Certificate or
Housing Voucher Programs, see Secs. 882.216 or 887.405 of this
chapter.)
Sec. 812.11 Proration of assistance.
(a) Applicability. This section applies to a mixed family other
than a family receiving continued assistance under Sec. 812.10(c), or
other than a family for which termination of assistance is temporarily
deferred under Sec. 812.10(d).
(b) Method of prorating assistance--(1) Section 8 assistance other
than Section 8 voucher assistance. For Section 8 assistance other than
assistance provided under the Section 8 Voucher Program, the HA shall
prorate the family's assistance as follows:
(i) Step 1. Determine gross rent for the unit. (Gross rent is
contract rent plus any allowance for tenant paid utilities).
(ii) Step 2. Determine total tenant payment in accordance with 24
CFR 813.107(a). (Annual income includes income of all family members,
including any family member who has not established eligible
immigration status).
(iii) Step 3. Subtract amount determined in Step 2 from amount
determined in Step 1.
(iv) Step 4. Multiply the amount determined in Step 3 by a fraction
for which:
(A) The numerator is the number of family members who have
established eligible immigration status, and
(B) The denominator is the total number of family members.
(v) Prorated housing assistance. The amount determined in Step 4 is
the prorated housing assistance payment for a mixed family.
(vi) No effect on contract rent. Proration of the housing
assistance payment does not affect contract rent to the owner. The
family must pay as rent the portion of contract rent not covered by the
prorated housing assistance payment.
(2) Section 8 Voucher assistance. For assistance under the Section
8 Voucher Program, the HA shall prorate the family's assistance as
follows:
(i) Step 1. Determine the amount of the pre-proration voucher
housing assistance payment in accordance with 24 CFR 887.353. (Annual
income includes income of all family members, including any family
member who has not established eligible immigration status.)
(ii) Step 2. Multiply the amount determined in Step 1 by a fraction
for which:
(A) The numerator is the number of family members who have
established eligible immigration status, and
(B) The denominator is the total number of family members.
(iii) Prorated housing assistance. The amount determined in Step 2
is the prorated housing assistance payment for a mixed family.
(iv) No effect on rent to owner. Proration of the voucher housing
assistance payment does not affect rent to the owner. The family must
pay as rent the portion of rent not covered by the prorated housing
assistance payment.
Sec. 812.12 Prohibition of assistance to noncitizen students.
(a) General. The provisions of Secs. 812.10 and 812.11, permitting
continued assistance, prorated assistance or temporary deferral of
termination of assistance for certain families, do not apply to any
person who is determined to be a noncitizen student, as defined in
paragraph (b) of this section, or the family of the noncitizen student,
as described in paragraph (c) of this section.
(b) Noncitizen student. For purposes of this part, a noncitizen
student is defined as a noncitizen who:
(1) Has a residence in a foreign country that the person has no
intention of abandoning;
(2) Is a bona fide student qualified to pursue a full course of
study; and
(3) Is admitted to the United States temporarily and solely for
purposes of pursuing such a course of study at an established
institution of learning or other recognized place of study in the
United States, particularly designated by such person and approved by
the Attorney General after consultation with the Department of
Education of the United States, which institution or place of study
shall have agreed to report to the Attorney General the termination of
attendance of each nonimmigrant student (and if any such institution of
learning or place of study fails to make such reports promptly the
approval shall be withdrawn).
(c) Family of noncitizen student. The prohibition on providing
assistance to a noncitizen student as described in paragraph (a) of
this section also extends to the noncitizen spouse of the noncitizen
student and minor children of any noncitizen student if the spouse or
children are accompanying the student or following to join such
student. The prohibition on providing assistance to a noncitizen
student does not extend to the citizen spouse of the noncitizen student
and the children of the citizen spouse and noncitizen student.
Sec. 812.13 Compliance with nondiscrimination requirements.
The responsible entity shall administer the restrictions on use of
assisted housing by noncitizens with ineligible immigration status
imposed by this part in conformity with the nondiscrimination
requirements of, including, but not limited to, title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-2000d-5), section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), the Fair Housing Act (42
U.S.C. 3601-3619), and the regulations implementing these statutes, and
other civil rights statutes cited in the applicable program
regulations. These statutes prohibit, among other things,
discriminatory practices on the basis of race, color, national origin,
sex, religion, age, disability and familial status in the provision of
housing.
Sec. 812.14 Protection from liability for responsible entities, State,
local, and tribal government agencies and officials.
(a) Protection from liability for responsible entities. HUD will
not take any compliance, disallowance, penalty, or other regulatory
action against a responsible entity with respect to any error in its
determination of eligibility for financial assistance based on
citizenship or immigration status:
(1) If the responsible entity established eligibility based upon
verification of eligible immigration status through the verification
system described in Sec. 812.8;
(2) Because the responsible entity was required to provide an
opportunity for the family to submit evidence in accordance with
Sec. 812.6;
(3) Because the responsible entity was required to wait for
completion of INS verification of immigration status in accordance with
Sec. 812.8;
(4) Because the responsible entity was required to wait for
completion of the INS appeal process provided in accordance with
Sec. 812.9(e); or
(5) Because the responsible entity was required to provide an
informal hearing in accordance with Sec. 812.9(f).
(b) Protection from liability for State, local and tribal
government agencies and officials. State, local and tribal government
agencies and officials shall not be liable for the design or
implementation of the verification system described in Sec. 812.8, and
the informal hearings provided under Sec. 812.9(f), as long as the
implementation by the State, local or tribal government agency or
official is in accordance with prescribed HUD rules and requirements.
Sec. 812.15 Liability of ineligible families for reimbursement of
benefits.
Where a family has received the benefit of HUD financial assistance
to which it was not entitled because the family intentionally
misrepresented eligible status, the ineligible family is responsible
for reimbursing HUD for the assistance improperly paid. If the amount
of the assistance is substantial, the responsible entity is encouraged
to refer the case to the HUD Regional Inspector General's office for
further investigation. Possible criminal prosecution may follow based
on the False Statements Act (18 U.S.C. 1001 and 1010).
PART 850--HOUSING DEVELOPMENT GRANTS
28. The authority citation for part 850 would continue to read as
follows:
Authority: 42 U.S.C. 1437o and 3535(d).
29. Section 850.151 would be revised by adding one sentence at the
beginning of paragraph (c), by adding two sentences at the end of
paragraph (f)(1), and by adding a new paragraph (f)(3), to read as
follows:
Sec. 850.151 Project restrictions.
* * * * *
(c) Tenant selection. The owner shall determine the eligibility of
applicants for lower income units in accordance with the requirements
of 24 CFR parts 812 and 813, including the provisions of these parts
concerning citizenship or eligible immigration status and income
limits, and certain assistance to mixed families (families whose
members include those with eligible immigration status, and those
without eligible immigration status). * * *
* * * * *
(f) * * *
(1) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of 24 CFR part 812 concerning verification of
the immigration status of any new family member.
* * * * *
(3) For provisions related to termination of assistance for failure
to establish citizenship or eligible immigration status, see 24 CFR
812.9, and also 24 CFR 812.10 for provisions related to certain
assistance to mixed families (families whose members include those with
eligible immigration status, and those without eligible immigration
status) in lieu of termination of assistance, and for provisions
related to deferral of termination of assistance.
* * * * *
PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR NEW
CONSTRUCTION
30. The authority citation for part 880 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
31. In Sec. 880.504, a new paragraph (e) would be added, to read as
follows:
Sec. 880.504 Leasing to eligible families.
* * * * *
(e) Termination of assistance for failure to submit evidence of
citizenship or eligible immigration status. If an owner who is subject
to paragraphs (a) and (b) of this section is required to terminate
housing assistance payments for the family in accordance with 24 CFR
812.9 because the owner determines that the entire family does not have
U.S. citizenship or eligible immigration status, the owner may allow
continued occupancy of the unit by the family without Section 8
assistance following the termination of assistance, or if the family
constitutes a mixed family, as defined in 24 CFR 812.10, the owner
shall comply with the provisions of 24 CFR 812.10 concerning assistance
to mixed families, and deferral of termination of assistance.
32. In Sec. 880.601, paragraph (b) would be revised to read as
follows:
Sec. 880.601 Responsibilities of owner.
* * * * *
(b) Management and maintenance. The owner is responsible for all
management functions, including determining eligibility of applicants
in accordance with 24 CFR parts 812 and 813, provision of Federal
selection preferences in accordance with Sec. 880.613, selection of
tenants, obtaining and verifying Social Security Numbers submitted by
families (as provided by 24 CFR part 750), obtaining signed consent
forms from families for the obtaining of wage and claim information
from State Wage Information Collection Agencies (as provided by 24 CFR
part 760), reexamination of family income, evictions and other
terminations of tenancy, and collection of rents, and all repair and
maintenance functions (including ordinary and extraordinary maintenance
and replacement of capital items). All these functions shall be
performed in compliance with applicable Equal Opportunity requirements.
* * * * *
33. Section 880.603 would be amended by revising the introductory
text of paragraph (b), by adding a sentence at the end of paragraph
(b)(3), by adding two sentences at the end of paragraph (c)(1), and by
adding one sentence at the end of paragraph (c)(2) and paragraph
(c)(3), to read as follows:
Sec. 880.603 Selection and admission of assisted tenants.
* * * * *
(b) Determination of eligibility and selection of tenants. The
owner is responsible for obtaining and verifying information related to
income in accordance with 24 CFR part 813, and evidence related to
citizenship and eligible immigration status in accordance with 24 CFR
part 812, to determine whether the applicant is eligible for assistance
in accordance with the requirements of 24 CFR parts 812 and 813, and to
select families for admission to the program, which includes giving a
Federal selection preference in accordance with Sec. 880.613.
* * * * *
(3) * * * For the informal hearing provisions related to denial of
assistance based upon failure to establish citizenship or eligible
immigration status, see 24 CFR 812.9, and also 24 CFR 812.10 for
provisions related to certain assistance for mixed families (families
whose members include those with eligible immigration status, and those
without eligible immigration status) in lieu of denial of assistance.
* * * * *
(c) * * *
(1) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of 24 CFR part 812 and verify the immigration
status of any new family member.
(2) * * * At any interim reexamination after [insert the effective
date of the final rule] when a new family member has been added, the
owner shall follow the requirements of 24 CFR part 812 concerning
obtaining and processing evidence of the citizenship or eligible
immigration status of any new family member.
(3) * * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status, see 24
CFR 812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
* * * * *
34. Section 880.607 would be amended by redesignating the first
sentence following the paragraph heading in paragraph (b)(3) as
paragraph (b)(3)(i); by redesignating the existing paragraphs (b)(3)(i)
and (b)(3)(ii) as (b)(3)(i)(A) and (b)(3)(i)(B), respectively; by
redesignating and revising the undesignated paragraph in (b)(3) as
(b)(3)(ii) and by adding a new paragraph (c)(4) to read as follows:
Sec. 880.607 Termination of tenancy and modification of lease.
* * * * *
(b) * * *
(3) * * *
(ii) Failure of the family to timely submit all required
information on family income and composition, including failure to
submit required evidence of citizenship or eligible immigration status
(as provided by 24 CFR part 812), failure to disclose and verify Social
Security Numbers (as provided by 24 CFR part 750), failure to sign and
submit consent forms (as provided by 24 CFR part 760), or knowingly
providing incomplete or inaccurate information, shall constitute a
substantial violation of the lease.
(c) * * *
(4) For provisions related to termination of assistance because of
failure to establish citizenship or eligible immigration status,
including informal hearing procedures, see 24 CFR part 812.9, and also
24 CFR 812.10 for provisions concerning certain assistance for mixed
families (families whose members include those with eligible
immigration status, and those without eligible immigration status) in
lieu of termination of assistance, and for provisions concerning
deferral of termination of assistance.
* * * * *
PART 881--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR
SUBSTANTIAL REHABILITATION
35. The authority citation for part 881 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
36. In Sec. 881.504, a new paragraph (e) would be added to read as
follows:
Sec. 881.504 Leasing to eligible families.
* * * * *
(e) Termination of assistance for failure to submit evidence of
citizenship or eligible immigration status. If an owner who is subject
to paragraphs (a) and (b) of this section is required to terminate
financial assistance in accordance with 24 CFR 812.9 because the owner
determines that the entire family does not have U.S. citizenship or
eligible immigration status, the owner may allow continued occupancy of
the unit by the family without Section 8 assistance following the
termination of assistance, or if the family constitutes a mixed family,
as defined in 24 CFR 812.10, the owner shall comply with the provisions
of 24 CFR 812.10 concerning certain assistance to mixed families, and
deferral of termination of assistance.
37. In Sec. 881.601, paragraph (b) would be revised to read as
follows:
Sec. 881.601 Responsibilities of owner.
* * * * *
(b) Management and maintenance. The owner is responsible for all
management functions (including determining eligibility of applicants
in accordance with 24 CFR parts 812 and 813, provision of Federal
selection preferences in accordance with Sec. 880.613, selection of
tenants, obtaining and verifying Social Security Numbers submitted by
families (as provided by 24 CFR part 750), obtaining signed consent
forms from families for the obtaining of wage and claim information
from State Wage Information Collection Agencies (as provided by 24 CFR
part 760), reexamination of family income, evictions and other
terminations of tenancy, and collection of rents) and all repair and
maintenance functions (including ordinary and extraordinary maintenance
and replacement of capital items). All these functions shall be
performed in compliance with applicable Equal Opportunity requirements.
* * * * *
38. Section 881.603 would be amended by revising the introductory
text of paragraph (b), by adding one sentence at the end of paragraph
(b)(3), by adding two sentences at the end of paragraph (c)(1), and by
adding one sentence at the end of paragraphs (c)(2) and (c)(3), to read
as follows:
Sec. 881.603 Selection and admission of assisted tenants.
* * * * *
(b) Determination of eligibility and selection of tenants. The
owner is responsible for obtaining and verifying information related to
income in accordance with 24 CFR part 813, and evidence related to
citizenship and eligible immigration status in accordance with 24 part
812 to determine whether the applicant is eligible for assistance in
accordance with the requirements of 24 CFR parts 812 and 813 and parts
750 and 760 of chapter VII, and to select families for admission to the
program, which includes giving a federal selection preference in
accordance with Sec. 881.613.
* * * * *
(3) * * * For the informal hearing provisions related to denial of
assistance based upon failure to establish citizenship or eligible
immigration status, see 24 CFR part 812.9, and also 24 CFR 812.10 for
provisions concerning certain assistance for mixed families (families
whose members include those with eligible immigration status, and those
without eligible immigration status) in lieu of denial of assistance.
* * * * *
(c) * * *
(1) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of 24 CFR part 812 concerning verification of
the immigration status of any new family member.
(2) * * * At any interim reexamination after [insert the effective
date of the final rule] when a new family member has been added, the
owner shall follow the requirements of 24 CFR part 812 concerning
obtaining and processing evidence of citizenship or eligible
immigration status of the new family member.
(3) * * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status, see 24
CFR 812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
* * * * *
39. In Sec. 881.607, the second sentence of paragraph (b)(3)(ii)
would be revised, and a new paragraph (c)(4) would be added, to read as
follows:
Sec. 881.607 Termination of tenancy and modification of lease.
* * * * *
(b) * * *
(3) * * * Failure of the family to timely submit all required
information on family income and composition, including failure to
submit required evidence of citizenship or eligible immigration status
(as provided by 24 CFR part 812), failure to disclose and verify Social
Security Numbers (as provided by 24 CFR part 750), failure to sign and
submit consent forms (as provided by 24 CFR part 760), or knowingly
providing incomplete or inaccurate information, shall constitute a
substantial violation of the lease. * * *
(c) * * *
(4) For provisions related to termination of assistance because of
failure to establish citizenship or eligible immigration status,
including the informal hearing procedures, see 24 CFR 812.9, and also
24 CFR 812.10 for provisions concerning certain assistance for mixed
families (families whose members include those with eligible
immigration status, and those without eligible immigration status) in
lieu of termination of assistance, and for provisions concerning
deferral of termination of assistance.
* * * * *
PART 882--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--EXISTING
HOUSING
40. The authority citation for part 882 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, and 3535(d). Subpart H
is also issued under authority of 42 U.S.C. 11401.
41. In Sec. 882.116, paragraph (c) would be revised to read as
follows:
Sec. 882.116 Responsibilities of the PHA.
* * * * *
(c) Receipt and review of applications for participation; selection
of applicants; verification of family income and other factors relating
to eligibility (including citizenship or eligible immigration status as
provided by 24 CFR part 812) and amount of assistance; and maintenance
of a waiting list.
* * * * *
42. In Sec. 882.118, paragraph (a)(1) would be revised to read as
follows:
Sec. 882.118 Obligations of the family.
(a) * * *
(1) Supply such certification, release, information or
documentation as the PHA or HUD determine to be necessary, including
submission of required evidence of citizenship or eligible immigration
status (as provided by 24 CFR part 812), submission of Social Security
Numbers and verifying documentation (as provided by 24 CFR part 750),
submission of signed consent forms for the obtaining of wage and claim
information from State Wage Information Collection Agencies (as
provided by 24 CFR part 760), and submissions required for an annual or
interim reexamination of family income and composition.
* * * * *
43. In Sec. 882.209, paragraph (a)(2) would be revised to read as
follows:
Sec. 882.209 Selection and participation.
(a) * * *
(2)(i) The PHA shall determine whether an applicant for
participation:
(A) Qualifies as a family;
(B) Is income eligible; and
(C) Is a citizen or is in eligible immigration status as determined
in accordance with 24 CFR part 812.
(ii) The family shall submit any certification, release,
information, or documentation as the PHA or HUD determines to be
necessary (see the requirements in 24 CFR parts 750, 760, 812, and
813).
* * * * *
44. In Sec. 882.210, a new paragraph (f) would be added to read as
follows:
Sec. 882.210 Grounds for denial or termination of assistance.
* * * * *
(f) The family's obligations as stated in Sec. 882.118 include
submission of required evidence of citizenship or eligible immigration
status. For a statement of circumstances in which the PHA shall deny or
terminate housing assistance payments because a family member is not a
U.S. citizen or does not establish eligible immigration status, and the
applicable informal hearing procedures, see Sec. 882.216(b) and 24 CFR
812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of denial or termination of assistance, and
for provisions concerning deferral of termination of assistance.
45. Section 882.212 would be amended by adding two sentences at the
end of paragraph (a), and by adding one sentence at the end of
paragraphs (b) and (c), to read as follows:
Sec. 882.212 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the PHA shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the PHA shall
follow the requirements of 24 CFR part 812 concerning verification of
the immigration status of any new family member (except a child born in
the United States).
(b) * * * At any interim reexamination after [insert the effective
date of the final rule] when there is a new family member, the PHA
shall follow the requirements of 24 CFR part 812 concerning obtaining
and processing evidence of citizenship or eligible immigration status
of the new family member.
(c) * * * For provisions requiring termination of housing
assistance payments when the PHA determines that a member is not a U.S.
citizen or does not have eligible immigration status, see Sec. 882.216
and 24 CFR 812.9, and also 24 CFR 812.10 for provisions concerning
certain assistance for mixed families (families whose members include
those with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
* * * * *
46. Section 882.216 would be amended by adding a new paragraph
(a)(5) and new paragraphs (b)(1)(v) and (b)(8), to read as follows:
Sec. 882.216 Informal review or hearing.
(a) * * *
(5) The informal hearing provisions for the denial of assistance on
the basis of ineligible immigration status are contained in 24 CFR
812.9.
(b) * * *
(1) * * *
(v) A determination that the participant does not qualify under the
PHA's policy for granting special relief under 24 CFR 812.10.
* * * * *
(8) The informal hearing provisions for the termination of
assistance on the basis of ineligible immigration status are contained
in 24 CFR 812.9.
* * * * *
47. In Sec. 882.514, paragraph (f) would be amended by adding one
sentence at the end, to read as follows:
Sec. 882.514 Family participation.
* * * * *
(f) * * * The informal hearing requirements for denial and
termination of assistance on the basis of ineligible immigration status
are contained in 24 CFR 812.9.
* * * * *
48. Section 882.515 would be amended by adding two sentences at the
end of paragraph (a), and by adding one sentence at the end of
paragraphs (b) and (c), to read as follows:
Sec. 882.515 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of this rule], the PHA shall follow the requirements of
24 CFR part 812 concerning obtaining and processing evidence of
citizenship or eligible immigration status of all family members.
Thereafter, at each regular reexamination, the PHA shall follow the
requirements of 24 CFR part 812 concerning verification of immigration
status of any new family member.
(b) * * * At any interim reexamination after [insert the effective
date of the final rule] when there is a new family member, the PHA
shall follow the requirements of 24 CFR part 812 concerning obtaining
and processing evidence of citizenship or eligible immigration status
of the new family member.
(c) * * * For provisions requiring termination of assistance when
the PHA determines that a family member is not a U.S. citizen or does
not have eligible immigration status, see Sec. 882.216 and 24 CFR 812.9
and also 24 CFR 812.10 for provisions concerning certain assistance for
mixed families (families whose members include those with eligible
immigration status, and those without eligible immigration status) in
lieu of termination of assistance, and for provisions concerning
deferral of termination of assistance.
48a. Section 882.808 would be amended by adding two sentences at
the end of paragraph (i)(1), one sentence at the end of paragraph
(i)(2), and a sentence at the end of paragraph (l), to read as follows:
Sec. 882.808 Management.
* * * * *
(i) * * *
(1) * * * At the first regular reexamination after [insert the
effective date of the final rule], the PHA shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the PHA shall
follow the requirements of 24 CFR part 812 concerning verification of
immigration status of any new family member.
(2) * * * At any interim reexamination after [insert the effective
date of the final rule] when there is a new family member, the PHA
shall follow the requirements of 24 CFR part 812 concerning obtaining
and processing evidence of citizenship or eligible immigration status
of the new family member.
* * * * *
(l) * * * For provisions requiring termination of assistance when
the PHA determines that a family member is not a U.S. citizen or does
not have eligible immigration status, see Sec. 882.216 and 24 CFR
812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, or for
provisions concerning deferral of termination of assistance.
* * * * *
PART 883--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--STATE
HOUSING AGENCIES
49. The authority citation for part 883 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
50. In Sec. 883.101, the last sentence of paragraph (c) would be
revised to read as follows:
Sec. 883.101 General.
* * * * *
(c) * * * Eligible families are families, as defined in 24 CFR part
812, whose incomes qualify them for assistance in accordance with 24
CFR part 813, and who are otherwise eligible under these parts.
* * * * *
51. In Sec. 883.605, a new paragraph (e) would be added, to read as
follows:
Sec. 883.605 Leasing to eligible families.
* * * * *
(e) Termination of assistance for failure to submit evidence of
citizenship or eligible immigration status. If an owner who is subject
to paragraphs (a) and (b) of this section is required to terminate
financial assistance in accordance with 24 CFR 812.9 because the owner
determines that the entire family does not have U.S. citizenship or
eligible immigration status, the owner may allow continued occupancy of
the unit by the family without Section 8 assistance following the
termination of assistance, or if the family constitutes a mixed family,
as defined in 24 CFR 812.10, the owner shall comply with the provisions
of 24 CFR 812.10 concerning assistance to mixed families, and deferral
of termination of assistance.
52. In Sec. 883.702, the section heading and paragraph (b) would be
revised to read as follows:
Sec. 883.702 Responsibilities of the owner.
* * * * *
(b) Management and maintenance. The owner is responsible for all
management functions (including determination of the eligibility of
applicants in accordance with 24 CFR parts 812 and 813, provision of
Federal selection preferences in accordance with Sec. 883.714,
selection of tenants, obtaining and verifying Social Security Numbers
submitted by families (as provided by 24 CFR part 750), obtaining
signed consent forms from families for the obtaining of wage and claim
information from State Wage Information Collection Agencies (as
provided by 24 CFR part 760), reexamination of family income, evictions
and other terminations of tenancy, and collection of rents) and all
repair and maintenance functions (including ordinary and extraordinary
maintenance and replacement of capital items). All these functions
shall be performed in compliance with applicable Equal Opportunity
requirements.
* * * * *
53. Section 883.704 would be amended by adding one sentence at the
end of paragraph (b)(3), two sentences at the end of paragraph (c)(1),
and one sentence at the end of paragraphs (c)(2), and (c)(3), to read
as follows:
Sec. 883.704 Selection and admission of tenants.
* * * * *
(b) * * *
(3) * * * For the informal hearing provisions related to denial of
assistance based upon failure to establish citizenship or eligible
immigration status, see 24 CFR 812.9, and also see 24 CFR 812.10 for
provisions concerning certain assistance for mixed families (families
whose members include those with eligible immigration status, and those
without eligible immigration status) in lieu of denial of assistance.
* * * * *
(c) * * *
(1) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of 24 CFR part 812 concerning the verification
of the immigration status of any new family member.
(2) * * * At any interim reexamination after [insert the effective
date of the rule] when there is a new family member, the owner shall
follow the requirements of 24 CFR part 812 concerning obtaining and
processing evidence of citizenship or eligible immigration status of
the new family member.
(3) * * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status, see 24
CFR 812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
* * * * *
54. In Sec. 883.708, the second sentence of paragraph (b)(3)(ii)
beginning with ``Failure of * * *'' would be revised, and a new
paragraph (c)(4) would be added, to read as follows:
Sec. 883.708 Termination of tenancy and modification of lease.
* * * * *
(b) * * *
(3) * * *
(ii) * * * Failure of the family to timely submit all required
information on family income and composition, including failure to
submit required evidence of citizenship or eligible immigration status
(as provided by 24 CFR part 812), failure to disclose and verify Social
Security Numbers (as provided by 24 CFR part 750), failure to sign and
submit consent forms (as provided by 24 CFR part 760), or knowingly
provide incomplete or inaccurate information, shall constitute a
substantial violation of the lease. * * *
* * * * *
(c) * * *
(4) For provisions requiring termination of assistance for failure
to establish citizenship or eligible immigration status, including the
applicable informal hearing requirements, see 24 CFR 812.9, and also 24
CFR 812.10 for provisions concerning certain assistance for mixed
families (families whose members include those with eligible
immigration status, and those without eligible immigration status) in
lieu of termination of assistance, and for provisions concerning
deferral of termination of assistance.
* * * * *
PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING
PROJECTS
55. The authority citation for part 884 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
56. In Sec. 884.118, paragraph (a)(3) would be revised to read as
follows:
Sec. 884.118 Responsibilities of the owner.
(a) * * *
(3) Performance of all management functions, including the taking
of applications; determining eligibility of applicants in accordance
with 24 CFR parts 812 and 813; selection of families, including
verification of income, provision of Federal selection preferences in
accordance with Sec. 884.226, obtaining and verifying Social Security
Numbers submitted by applicants (as provided by 24 CFR part 750),
obtaining signed consent forms from applicants for the obtaining of
wage and claim information from State Wage Information Collection
Agencies (as provided in 24 CFR part 760), and other pertinent
requirements; and determination of the amount of tenant rent in
accordance with HUD established schedules and criteria.
* * * * *
57. In section 884.214, paragraph (b)(1) would be revised and a new
paragraph (b)(8) would be added, to read as follows:
Sec. 884.214 Marketing.
* * * * *
(b) Eligibility, selection and admission of families. (1) The owner
is responsible for determination of eligibility of applicants in
accordance with the procedures of 24 CFR part 812, selection of
families from among those determined to be eligible (including
provision of Federal selection preferences in accordance with
Sec. 884.226), and computation of the amount of housing assistance
payments on behalf of each selected family, in accordance with
schedules and criteria established by HUD.
* * * * *
(8) For the informal hearing provisions related to denial of
assistance based upon failure to establish citizenship or eligible
immigration status, see 24 CFR 812.9, and also 24 CFR 812.10 for
provisions concerning certain assistance for mixed families (families
whose members include those with eligible immigration status, and those
without eligible immigration status) in lieu of denial of assistance.
58. In Sec. 884.216, a new sentence is added at the end of the
paragraph to read as follows:
Sec. 884.216 Termination of tenancy.
* * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status,
including the applicable informal hearing requirements, see 24 CFR
812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
59. Section 884.218 would be amended by adding two sentences at the
end of paragraph (a), one sentence at the end of paragraphs (b) and
(c), to read as follows:
Sec. 884.218 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of 24 CFR part 812 concerning verification of
the immigration status of any new family member.
(b) * * * At any interim reexamination after [Insert the effective
date of this rule] when there is a new family member, the owner shall
follow the requirements of 24 CFR part 812 concerning obtaining and
processing evidence of citizenship or eligible immigration status of
the new family member.
(c) * * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status, see 24
CFR 812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
60. In Sec. 884.223, a new paragraph (e) would be added to read as
follows:
Sec. 884.223 Leasing to eligible families.
* * * * *
(e) Termination of assistance for failure to establish citizenship
or eligible immigration status. If an owner subject to paragraphs (a)
and (b) of this section is required to terminate housing assistance
payments for the family in accordance with Sec. 812.9 of this chapter
because the owner determines that the entire family does not have U.S.
citizenship or eligible immigration status, the owner may allow
continued occupancy of the unit by the family without Section 8
assistance following the termination of assistance, or if the family
constitutes a mixed family, as defined in 24 CFR 812.10, the owner
shall comply with the provisions of 24 CFR 812.10 concerning assistance
to mixed families, and deferral of termination of assistance.
PART 886--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--SPECIAL
ALLOCATIONS
61. The authority citation for part 886 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
1619.
62. In Sec. 886.119, the section heading and paragraph (a)(3) would
be revised to read as follows:
Sec. 886.119 Responsibilities of the owner.
(a) * * *
(3) Performance of all management functions, including the taking
of applications; determining eligibility of applicants in accordance
with 24 CFR parts 812 and 813; selection of families, including
verification of income, provision of Federal selection preferences in
accordance with Sec. 886.132, obtaining and verifying Social Security
Numbers submitted by applicants (as provided by 24 CFR part 750),
obtaining signed consent forms from applicants for the obtaining of
wage and claim information from State Wage Information Collection
Agencies (as provided in 24 CFR part 760), and other pertinent
requirements; and determination of the amount of tenant rent in
accordance with HUD established schedules and criteria.
* * * * *
63. In Sec. 886.121, paragraph (b) would be revised and a new
paragraph (c) would be added, to read as follows:
Sec. 886.121 Marketing.
* * * * *
(b) The Owner shall comply with the applicable provisions of the
Contract, this subpart, and the procedures of 24 CFR part 812 in taking
applications, selecting families, and all related determinations.
(c) For the informal hearing provisions related to denial of
assistance based upon failure to establish citizenship or eligible
immigration status, see 24 CFR 812.9, and also 24 CFR 812.10 for
provisions concerning certain assistance for mixed families (families
whose members include those with eligible immigration status, and those
without eligible immigration status) in lieu of denial of assistance.
64. Section 886.124 would be amended by adding two sentences at the
end of paragraph (a), one sentence at the end of paragraphs (b) and (c)
to read as follows:
Sec. 886.124 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of 24 CFR part 812 concerning verification of
the immigration status of any new family member.
(b) * * * At any interim reexamination after [insert the effective
date of the final rule] when there is a new family member, the owner
shall follow the requirements of 24 CFR part 812 concerning obtaining
and processing evidence of citizenship or eligible immigration status
of the new family member.
(c) * * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status, see 24
CFR 812.9 and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
65. Section 886.128 would be revised to read as follows:
Sec. 886.128 Termination of tenancy.
Part 247 of this title applies to the termination of tenancy and
eviction of a family assisted under this subpart. For cases involving
termination of tenancy because of a failure to establish citizenship or
eligible immigration status, the procedures of 24 parts 247 and 812
shall apply. The provisions of 24 CFR 812.10 concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and
concerning deferral of termination of assistance also shall apply.
66. In Sec. 886.129, a new paragraph (e) would be added, to read as
follows:
Sec. 886.129 Leasing to eligible families.
* * * * *
(e) Termination of assistance for failure to establish citizenship
or eligible immigration status. If an owner subject to paragraphs (a)
and (b) of this section is required to terminate housing assistance
payments for the family in accordance with 24 CFR 812.9 because the
owner determines that the entire family does not have U.S. citizenship
or eligible immigration status, the owner may allow continued occupancy
of the unit by the family without Section 8 assistance following the
termination of assistance, or if the family constitutes a mixed family,
as defined in 24 CFR 812.10, the owner shall comply with the provisions
of 24 CFR 812.10 concerning assistance to mixed families, and deferral
of termination of assistance.
67. In Sec. 886.318, paragraph (a)(3) would be revised to read as
follows:
Sec. 886.318 Responsibilities of the owner.
(a) * * *
(3) Performance of all management functions, including the taking
of applications; determining eligibility of applicants in accordance
with 24 CFR parts 812 and 813; selection of families, including
verification of income, provision of Federal selection preferences in
accordance with Sec. 886.337, obtaining and verifying Social Security
Numbers submitted by applicants (as provided by 24 CFR part 750),
obtaining signed consent forms from applicants for the obtaining of
wage and claim information from State Wage Information Collection
Agencies (as provided in 24 CFR part 760), and other pertinent
requirements; and determination of the amount of tenant rent in
accordance with HUD established schedules and criteria.
* * * * *
68. In Sec. 886.321, the first two sentences of paragraph (b)(1)
would be revised and a new paragraph (b)(7) would be added, to read as
follows:
Sec. 886.321 Marketing.
* * * * *
(b)(1) HUD will determine the eligibility for assistance of
families in occupancy before sales closing. After the sale, the owner
shall be responsible for determining the eligibility of applicants for
tenancy (including compliance with the procedures of 24 CFR part 812 on
evidence of citizenship or eligible immigration status), selection of
families from among those determined to be eligible (including
provision of Federal preferences in accordance with Sec. 886.337), and
computation of the amount of housing assistance payments on behalf of
each selected family, in accordance with the Gross Rent and the Total
Tenant Payment computed in accordance with 24 CFR part 813. * * *
* * * * *
(7) For the informal hearing provisions related to denial of
assistance based upon failure to establish citizenship or eligible
immigration status, see 24 CFR 812.9, and 24 CFR 812.10 for provisions
concerning certain assistance for mixed families (families whose
members include those with eligible immigration status, and those
without eligible immigration status) in lieu of denial of assistance.
* * * * *
69. Section 886.324 would be amended by adding two sentences at the
end of paragraph (a), one sentence at the end of paragraphs (b) and
(c), to read as follows:
Sec. 886.324 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the owner shall follow the
requirements of 24 CFR part 812 concerning obtaining and processing
evidence of citizenship or eligible immigration status of all family
members. Thereafter, at each regular reexamination, the owner shall
follow the requirements of part 812 concerning verification of the
immigration status of any new family member.
(b) * * * At any interim reexamination after [insert the effective
date of the final rule] when there is a new family member, the owner
shall follow the requirements of 24 CFR part 812 concerning obtaining
and processing evidence of citizenship or eligible immigration status
of the new family member.
(c) * * * For provisions requiring termination of assistance for
failure to establish citizenship or eligible immigration status, see 24
CFR 812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and for
provisions concerning deferral of termination of assistance.
70. Section 886.328 would be revised to read as follows:
Sec. 886.328 Termination of tenancy.
Part 247 of this title applies to the termination of tenancy and
eviction of a family assisted under this subpart. For cases involving
termination of tenancy because of a failure to establish citizenship or
eligible immigration status, the procedures of 24 CFR parts 247 and 812
shall apply. The provisions of 24 CFR 812.10 concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of termination of assistance, and
concerning deferral of termination of assistance also shall apply.
71. In Sec. 886.329, a new paragraph (e) would be added to read as
follows:
Sec. 886.329 Leasing to eligible families.
* * * * *
(e) Termination of assistance for failure to establish citizenship
or eligible immigration status. If an owner who is subject to
paragraphs (a) and (b) of this section is required to terminate housing
assistance payments for the family in accordance with 24 CFR 812.9
because the owner determines that the entire family does not have U.S.
citizenship or eligible immigration status, the owner may allow
continued occupancy of the unit by the family without section 8
assistance following the termination of assistance, or if the family
constitutes a mixed family, as defined in 24 CFR 812.10, the owner
shall comply with the provisions of 24 CFR 812.10 concerning assistance
to mixed families, and deferral of termination of assistance.
PART 887--HOUSING VOUCHERS
72. The authority citation for part 887 would be revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, and 3535(d).
73. In Sec. 887.105, paragraph (b)(5) would be revised to read as
follows:
Sec. 887.105 PHA responsibilities.
* * * * *
(b) * * *
(5) Determine the amount of, and make, the housing assistance
payment (see Sec. 887.353); obtain and verify evidence related to
citizenship and eligible immigration status in accordance with 24 CFR
part 812; reexamine the family income and family size and composition,
at least annually, and redetermine the amount of the housing assistance
payment (see Secs. 887.355 through 887.359); adjust the amount of the
housing assistance payment as a result of an adjustment by the PHA of
any applicable payment standard or utility allowance (see Secs. 887.353
and 887.361); and
* * * * *
74. In Sec. 887.355, paragraph (b) would be redesignated as
paragraph (c), and a new paragraph (b) would be added, to read as
follows:
Sec. 887.355 Regular reexamination of family income and composition.
* * * * *
(b) At the first regular reexamination after [insert the effective
date of the final rule], the PHA shall follow the requirements of 24
CFR part 812 concerning obtaining and processing evidence of
citizenship or eligible immigration status of all family members.
Thereafter, at each regular reexamination, the PHA shall follow the
requirements of 24 CFR part 812 concerning verification of the
immigration status of any new family member.
* * * * *
75. Section 887.357 would be amended by adding a new sentence at
the end, to read as follows:
Sec. 887.357 Interim reexamination of family income and composition.
* * * At any interim reexamination after [insert the effective date
of the final rule] that involves the addition of a new family member,
the PHA shall follow the requirements of 24 CFR part 812 concerning
obtaining and processing evidence of citizenship or eligible
immigration status of the new family member.
76. In Sec. 887.401, paragraph (a)(1) would be revised, to read as
follows:
Sec. 887.401 Family responsibilities.
(a) A family shall:
(1) Supply any certification, release, information, or
documentation that the PHA or HUD determines to be necessary in the
administration of the program, including submission of required
evidence of citizenship or eligible immigration status (as provided by
24 CFR part 812), disclosure and verification of Social Security
Numbers (as provided by 24 CFR part 750), signing and submission of
consent forms for the obtaining of wage and claim information from
State Wage Information Collection Agencies (as provided by 24 CFR part
760), and other information required for use by the PHA in a regularly
scheduled reexamination or interim reexamination of family income and
composition in accordance with HUD requirements;
* * * * *
77. In Sec. 887.403, paragraphs (d) and (e) would be redesignated
as paragraphs (e) and (f), and a new paragraph (d) would be added, to
read as follows:
Sec. 887.403 Grounds for PHA denial or termination of assistance.
* * * * *
(d) The family's obligations as stated in Sec. 887.401 include
submission of required evidence of citizenship or eligible immigration
status. For a statement of circumstances in which the PHA shall deny or
terminate assistance because of a family member's inability to
establish citizenship or eligible immigration status, and the
applicable informal hearing procedures, see 24 CFR 882.216 and 24 CFR
812.9, and also 24 CFR 812.10 for provisions concerning certain
assistance for mixed families (families whose members include those
with eligible immigration status, and those without eligible
immigration status) in lieu of denial or termination of assistance, and
for provisions concerning deferral of termination of assistance.
78. Section 887.405 would be amended by adding a new paragraph
(a)(4) and new paragraphs (b)(1)(iv) and (b)(8), to read as follows:
Sec. 887.405 Informal review or hearing.
(a) * * *
(4) The informal hearing provisions for the denial of assistance on
the basis of ineligible immigration status are contained in 24 CFR
812.9.
(b) * * *
(1) * * *
(iv) A determination that the participant does not qualify under
the PHA's policy for granting special assistance under 24 CFR 812.10.
* * * * *
(8) The informal hearing provisions for the termination of
assistance on the basis of ineligible immigration status are contained
in 24 CFR 812.9.
PART 900--SECTION 23 HOUSING ASSISTANCE PAYMENTS PROGRAM--NEW
CONSTRUCTION AND SUBSTANTIAL REHABILITATION
79. The authority citation for part 900 would continue to read as
follows:
Authority: 42 U.S.C. 1410(b) and 3535(d).
80. In Sec. 900.102, the first sentence of paragraph (g) would be
revised to read as follows:
Sec. 900.102 Definitions.
* * * * *
(g) Eligible families. Those families determined by the LHA to meet
the requirements for admission into housing assisted under this part in
accordance with 24 CFR parts 912 and 913 and other pertinent
requirements. * * *
* * * * *
81. Section 900.202 would be amended by adding a new sentence to
the end of paragraph (d)(3), and by redesignating existing paragraphs
(g) and (h) as paragraphs (h) and (i) respectively, and by adding a new
paragraph (g), to read as follows:
Sec. 900.202 Project operation.
* * * * *
(d) * * *
(3) * * * For provisions related to denial of assistance because of
a failure to establish citizenship or eligible immigration status, the
requirements of 24 CFR 960.207 and 24 CFR part 912 shall apply.
* * * * *
(g) Termination of assistance. For provisions related to
termination of assistance for failure to establish citizenship or
eligible immigration status, the requirements of 24 CFR parts 912 and
966 shall apply.
* * * * *
PART 904--LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES
82. The authority citation for part 904 would be revised to read as
follows:
Authority: 42 U.S.C. 1437-1437ee and 3535(d).
83. In Sec. 904.104, the first sentence of paragraph (b)(1) and
paragraph (g)(2) would be revised, to read as follows:
Sec. 904.104 Eligibility and selection of homebuyers.
* * * * *
(b) Eligibility and standards for admission. (1) Homebuyers shall
be lower income families that are determined to be eligible for
admission in accordance with the provisions of 24 CFR parts 912 and
913, which prescribe income definitions, income limits, and
restrictions concerning citizenship or eligible immigration status. * *
*
* * * * *
(g) * * *
(2) Applicants who are not selected for a specific Turnkey III
development shall be notified in accordance with HUD-approved
procedure. The notice shall state:
(i) The reason for the applicant's rejection (including a
nonrecommendation by the recommending committee unless the applicant
has previously been so notified by the committee);
(ii) That the applicant will be given an informal hearing on such
determination, regardless of the reason for the rejection, if the
applicant makes a request for such a hearing within a reasonable time
(to be specified in the notice) from the date of the notice; and
(iii) For denial of assistance for failure to establish citizenship
or eligible immigration status, the applicant may request, in addition
to the informal hearing, an appeal to the INS, in accordance with 24
CFR 912.9.
* * * * *
84. In Sec. 904.107, paragraphs (j)(2) and (m)(1) would be revised
to read as follows:
Sec. 904.107 Responsibilities of homebuyer.
* * * * *
(j) * * *
(2) For purposes of determining eligibility of an applicant (see 24
CFR parts 912 and 913, as well as this part) and the amount of
Homebuyer payments under paragraph (j)(1) of this section, the LHA
shall examine the family's income and composition and follow the
procedures required by 24 CFR part 912 for determining citizenship or
eligible immigration status before initial occupancy. Thereafter, for
the purposes stated above and to determine whether a Homebuyer is
required to purchase the home under Sec. 904.104(h)(1), the LHA shall
reexamine the Homebuyer's income and composition regularly, at least
once every 12 months, and shall undertake such further determination
and verification of citizenship or eligible immigration status as
required by 24 CFR part 912. The Homebuyer shall comply with the LHA's
policy regarding required interim reporting of changes in the family's
income and composition. If the LHA receives information from the family
or other source concerning a change in the family income or other
circumstances between regularly scheduled reexaminations, the LHA, upon
consultation with the family and verification of the information (in
accordance with 24 CFR parts 912 and 913 of this chapter) shall
promptly make any adjustments determined to be appropriate in the
Homebuyer payment amount or take appropriate action concerning the
addition of a family member who is not a citizen with eligible
immigration status. Any change in the family's income or other
circumstances that results in an adjustment in the Total Tenant Payment
and Tenant Rent must be verified.
* * * * *
(m) Termination by LHA. (1) In the event the homebuyer breaches the
Homebuyers Ownership Opportunity Agreement by failure to make the
required monthly payment within ten days after its due date, by
misrepresenting or withholding of information in applying for admission
or in connection with any subsequent reexamination of income and family
composition (including the failure to submit any required evidence of
citizenship or eligible immigration status, as provided by 24 CFR part
912; the failure to meet the disclosure and verification requirements
for Social Security Numbers, as provided by 24 CFR part 750; or the
failure to sign and submit consent forms for the obtaining of wage and
claim information from State Wage Information Collection Agencies, as
provided by 24 CFR part 760), or by failure to comply with any of the
other homebuyer obligations under the Agreement, the LHA may terminate
the Agreement. No termination under this paragraph may occur less than
30 days after the LHA gives the homebuyer notice of its intention to do
so, in accordance with paragraph (m)(3) of this section. For
termination of assistance for failure to establish citizenship or
eligible immigration status under 24 CFR part 912, the requirements of
24 CFR parts 912 and 966 shall apply.
* * * * *
PART 905--INDIAN HOUSING PROGRAMS
85. The authority citation for part 905 would continue to read as
follows:
Authority: 25 U.S.C. 450e(b); 42 U.S.C. 1437a, 1437aa, 1437bb,
1437cc, 1437ee, and 3535(d).
86. Section 905.102 would be amended by adding definitions in
alphabetical order for the terms ``Child,'' ``Citizen,'' ``Evidence of
citizenship or eligible immigration status,'' ``Head of household,''
``INS,'' ``Mixed family,'' ``National,'' ``Noncitizen,'' ``Section
214,'' and ``Section 214 covered program,'' to read as follows:
Sec. 905.102 Definitions.
* * * * *
Child. A member of the family, other than the family head or a
spouse, who is under 18 years of age.
* * * * *
Citizen. A citizen or national of the United States.
* * * * *
Evidence of citizenship or eligible immigration status. The
documents which must be submitted to evidence citizenship or eligible
immigration status (see Sec. 905.310(e)).
* * * * *
Head of household. The adult member of the family who is the head
of the household for purposes of determining income eligibility and
rent.
* * * * *
INS. The U.S. Immigration and Naturalization Service.
* * * * *
Mixed family. A family whose members include those with citizenship
or eligible immigration status, and those without citizenship or
eligible immigration status.
* * * * *
National. A person who owes permanent allegiance to the United
States, for example, as a result of birth in a United States territory
or possession.
* * * * *
Noncitizen. A person who is neither a citizen nor national of the
United States.
* * * * *
Section 214. Section 214 of the Housing and Community Development
Act of 1980, as amended (42 U.S.C. 1436a). Section 214 restricts HUD
from making financial assistance available for noncitizens unless they
meet one of the six statutory categories of eligible immigration
status.
Section 214 covered programs. Programs to which the restrictions
imposed by section 214 apply are programs that make available financial
assistance pursuant to the United States Housing Act of 1937 (42 U.S.C.
1437-440), section 235 or section 236 of the National Housing Act (12
U.S.C. 1715z and 1715z-1) and section 101 of the Housing and Urban
Development Act of 1965 (12 U.S.C. 1701s).
* * * * *
87. Section 905.310 would be added to read as follows:
Sec. 905.310 Restrictions on assistance to noncitizens.
(a) Requirements concerning documents. For any notice or document
(decision, declaration, consent form, etc.) that this section requires
an IHA to provide to an individual, or requires that the IHA obtain the
signature of the individual, the IHA, where feasible, must arrange for
the notice or document to be provided to the individual in a language
that is understood by the individual if the individual is not
proficient in English. (See 24 CFR 8.6 of HUD's regulations for
requirements concerning communications with persons with disabilities.)
(b) Restrictions on assistance. Assistance provided under a section
214 covered program is restricted to:
(1) Citizens; or
(2) Noncitizens who have eligible immigration status in one of the
following categories:
(i) A noncitizen lawfully admitted for permanent residence, as
defined by section 101(a)(20) of the Immigration and Nationality Act
(INA), as an immigrant, as defined by section 101(a)(15) of the INA (8
U.S.C. 1101(a)(20) and 1101(a)(15), respectively) [immigrants]. (This
category includes a noncitizen admitted under section 210 or 210A of
the INA (8 U.S.C. 1160 or 1161), [special agricultural worker], who has
been granted lawful temporary resident status);
(ii) A noncitizen who entered the United States before January 1,
1972, or such later date as enacted by law, and has continuously
maintained residence in the United States since then, and who is not
ineligible for citizenship, but who is deemed to be lawfully admitted
for permanent residence as a result of an exercise of discretion by the
Attorney General under section 249 of the INA (8 U.S.C. 1259);
(iii) A noncitizen who is lawfully present in the United States
pursuant to an admission under section 207 of the INA (8 U.S.C. 1157)
[refugee status]; pursuant to the granting of asylum (which has not
been terminated) under section 208 of the INA (8 U.S.C. 1158) [asylum
status]; or as a result of being granted conditional entry under
section 203(a)(7) of the INA (8 U.S.C. 1153(a)(7)) before April 1,
1980, because of persecution or fear of persecution on account of race,
religion, or political opinion or because of being uprooted by
catastrophic national calamity;
(iv) A noncitizen who is lawfully present in the United States as a
result of an exercise of discretion by the Attorney General for
emergent reasons or reasons deemed strictly in the public interest
under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) [parole
status];
(v) A noncitizen who is lawfully present in the United States as a
result of the Attorney General's withholding deportation under section
243(h) of the INA (8 U.S.C. 1253(h)) [threat to life or freedom]; or
(vi) A noncitizen lawfully admitted for temporary or permanent
residence under section 245A of the INA (8 U.S.C. 1255a) [amnesty
granted under INA 245A].
(c) Family eligibility for assistance. (1) A family shall not be
eligible for assistance unless every member of the family residing in
the unit is determined to have eligible status, as described in
paragraph (b) of this section;
(2) Despite the ineligibility of one or more family members, a
mixed family may be eligible for one of the three types of assistance
provided in paragraph (r) of this section. A family without any
eligible members and receiving assistance on [insert the effective date
of the final rule] may be eligible for temporary deferral of
termination of assistance as provided in paragraph (r) of this section.
(d) Exemption of certain homebuyers from restrictions of this
section. A homebuyer who executed a Homeownership Opportunity Agreement
under the Turnkey III program or who executed a Mutual Help and
Occupancy Agreement under the Mutual Help Homeownership program before
[insert the effective date of the final rule] is not subject to this
citizenship or eligible immigration status requirement for continued
participation in the program.
(e) Submission of evidence of citizenship or eligible immigration
status.
(1) General. Eligibility for assistance or continued assistance
under a Section 214 covered program is contingent upon a family's
submission to the IHA of the documents described in paragraph (e)(2) of
this section for each family member. If one or more family members do
not have citizenship or eligible immigration status, the members may
exercise the election not to contend to have eligible immigration
status as provided in paragraph (f) of this section, and the provisions
of paragraph (r) of this section shall apply.
(2) Evidence of citizenship or eligible immigration status. Each
family, regardless of age, must submit the following evidence to the
IHA:
(i) For citizens, the evidence consists of a signed declaration of
U.S. citizenship;
(ii) For noncitizens who are 62 years of age or older or who will
be 62 years of age or older and receiving assistance under a Section
214 covered program on [insert the effective date of the final rule],
the evidence consists of:
(A) A signed declaration of eligible immigration status; and
(B) Proof of age document.
(iii) For all other noncitizens, the evidence consists of:
(A) A signed declaration of eligible immigration status;
(B) The INS documents listed in paragraph (k)(2) of this section;
and
(C) A signed verification consent form.
(3) Declaration. For each family member, the family must submit to
the IHA a written declaration, signed under penalty of perjury, by
which the family member declares whether he or she is a U.S. citizen or
a noncitizen with eligible immigration status.
(i) For each adult, the declaration must be signed by the adult.
(ii) For each child, the declaration must be signed by an adult
residing in the assisted dwelling unit who is responsible for the
child.
(4) Verification consent form--(i) Who signs. Each noncitizen who
declares eligible immigration status, must sign a verification consent
form as follows:
(A) For each adult, the form must be signed by the adult.
(B) For each child, the form must be signed by an adult member of
the family residing in the assisted dwelling unit who is responsible
for the child.
(ii) Notice of release of evidence by IHA. The verification consent
form shall provide that evidence of eligible immigration status may be
released by the IHA, without responsibility for the further use or
transmission of the evidence by the entity receiving it, to:
(A) HUD as required by HUD;
(B) The INS; and, if applicable,
(C) Another Federal agency, or a State or local government agency
in accordance with Federal, State or local law that requires the
release of the evidence to that agency.
(iii) Notice of release of evidence by HUD. The verification
consent form also shall notify the individual of the possible release
of evidence of eligible immigration status by HUD. Evidence of eligible
immigration status shall only be released to the INS for purposes of
establishing eligibility for financial assistance and not for any other
purpose. HUD is not responsible for the further use or transmission of
the evidence or other information by the INS.
(f) Individuals who do not contend to have eligible immigration
status. If one or more members of a family elect not to contend that
they have eligible immigration status and the other members of the
family establish their citizenship or eligible immigration status, the
family may be considered for prorated assistance under paragraph (s) of
this section despite the fact that no declaration or documentation of
eligible status is submitted by one or more members of the family. The
family must, however, identify to the IHA, the family member (or
members) who will elect not to contend that he or she has eligible
immigration status.
(g) Notification of requirements of Section 214--(1) When notice is
to be issued. Notification of the requirement to submit evidence of
citizenship or eligible immigration status, as required by this
section, or to elect not to contend that one has eligible immigration
status, as allowed by paragraph (f) of this section, shall be given by
the IHA as follows:
(i) Applicant's notice. Notification of the requirement to submit
evidence of eligible status shall be given to each applicant at the
time of application for financial assistance. Families whose
applications are pending on [insert the effective date of the final
rule] shall be notified of the requirements to submit evidence of
eligible status as soon as possible after [insert the effective date of
the final rule].
(ii) Notice to families already receiving assistance. For a family
in occupancy on [insert the effective date of the final rule],
notification of the requirement to submit evidence of eligible status
shall be given to each at the time of, and together with, the IHA's
notice of the first regular reexamination after that date, but not
later than one year following [insert the effective date of the final
rule].
(2) Form and content of notice. The notice shall:
(i) State that financial assistance is contingent upon the
submission and verification, as appropriate, of the evidence of
citizenship or eligible immigration status, as required by this
section; and
(ii) Describe the type of evidence that must be submitted and state
the time period in which that evidence must be submitted (see paragraph
(h) of this section concerning when evidence must be submitted); and
(iii) State that assistance will be prorated, denied or terminated,
as appropriate, upon a final determination of ineligibility after all
appeals have been exhausted (see paragraph (n) of this section
concerning INS appeal, and paragraph (o) of this section concerning IHA
informal hearing process) or, if appeals are not pursued, at a time to
be specified in accordance with HUD requirements. Families already
receiving assistance also shall be informed of how to obtain assistance
under the preservation of families provisions of paragraph (r) of this
section.
(h) When evidence of eligible status is required to be submitted.
The IHA shall require evidence of eligible status to be submitted at
the times specified in paragraph (h) of this section subject to any
extension granted in accordance with paragraph (i) of this section.
(1) Applicants. For applicants, the IHA must ensure that evidence
of eligible status is submitted not later than the date the IHA
anticipates or has knowledge that verification of other aspects of
eligibility for assistance will occur (see paragraph (l) of this
section).
(2) Families already receiving assistance. For a family already
receiving the benefit of assistance in a covered program on [insert the
effective date of the final rule], the required evidence shall be
submitted at the first regular reexamination after [insert the
effective date of the final rule], in accordance with program
requirements.
(3) New occupants of assisted units. For any new family members,
the required evidence shall be submitted at the first interim or
regular reexamination following the person's occupancy.
(4) Changing participation in a HUD program. Whenever a family
applies for admission to a Section 214 covered program, evidence of
eligible status is required to be submitted in accordance with the
requirements of this part unless the family already has submitted the
evidence to the IHA for a covered program.
(5) One-time evidence requirement for continuous occupancy. For
each family member, the family is required to submit evidence of
eligible status one time during continuously assisted occupancy under
any covered program.
(i) Extensions of time to submit evidence of eligible status--(1)
When extension must be granted. The IHA shall extend the time, provided
in paragraph (h) of this section, to submit evidence of eligible
immigration status if the family member:
(i) Submits the declaration required under paragraph (e)(3) of this
section certifying that any person for whom required evidence has not
been submitted is a noncitizen with eligible immigration status; and
(ii) Certifies that the evidence needed to support a claim of
eligible immigration status is temporarily unavailable, additional time
is needed to obtain and submit the evidence, and prompt and diligent
efforts will be undertaken to obtain the evidence.
(2) Prohibition on indefinite extension period. Any extension of
time, if granted, shall be for a specific period of time. The
additional time provided should be sufficient to allow the family the
time to obtain the evidence needed. The IHA's determination of the
length of the extension needed, shall be based on the circumstances of
the individual case.
(3) Grant or denial of extension to be in writing. The IHA's
decision to grant or deny an extension as provided in paragraph (i)(1)
of this section shall be issued to the family by written notice. If the
extension is granted, the notice shall specify the extension period
granted. If the extension is denied, the notice shall explain the
reasons for denial of the extension.
(j) Failure to submit evidence or establish eligible immigration
status. If the family fails to submit required evidence of eligible
immigration status within the time period specified in the notice, or
any extension granted in accordance with paragraph (i) of this section,
or if the evidence is timely submitted but fails to establish eligible
immigration status, the IHA shall proceed to deny, prorate or terminate
assistance, or provide continued assistance or temporary deferral of
termination of assistance, as appropriate, in accordance, respectively
with the provisions of paragraph (m) of this section or paragraph (r)
of this section.
(k) Documents of eligible immigration status--(1) General. An IHA
shall request and review original documents of eligible immigration
status. The IHA shall retain photocopies of the documents for its own
records and return the original documents to the family.
(2) Acceptable evidence of eligible immigration status. The
original of one of the following documents is acceptable evidence of
eligible immigration status, subject to verification in accordance with
paragraph (l) of this section.
(i) Form I-551, Alien Registration Receipt Card (for permanent
resident aliens);
(ii) Form I-94, Arrival-Departure Record, with one of the following
annotations:
(A) ``Admitted as Refugee Pursuant to Section 207'';
(B) ``Section 208'' or ``Asylum'';
(C) ``Section 243(h)'' or ``Deportation stayed by Attorney
General'';
(D) ``Paroled Pursuant to Sec. 212(d)(5) of the INA'';
(iii) If Form I-94, Arrival-Departure Record, is not annotated,
then accompanied by one of the following documents:
(A) A final court decision granting asylum (but only if no appeal
is taken);
(B) A letter from an INS asylum officer granting asylum (if
application is filed on or after October 1, 1990) or from an INS
district director granting asylum (if application filed before October
1, 1990);
(C) A court decision granting withholding or deportation; or
(D) A letter from an INS asylum officer granting withholding of
deportation (if application filed on or after October 1, 1990).
(iv) Form I-688, Temporary Resident Card, which must be annotated
``Section 245A'' or ``Section 210'';
(v) Form I-688B, Employment Authorization Card, which must be
annotated ``Provision of Law 274a.12(11)'' or ``Provision of Law
274a.12'';
(vi) A receipt issued by the INS indicating that an application for
issuance of a replacement document in one of the above-listed
categories has been made and the applicant's entitlement to the
document has been verified; or
(vii) If other documents are determined to constitute acceptable
evidence of eligible immigration status, they will be announced by HUD
in a notice published in the Federal Register.
(l) Verification of eligible immigration status. (1) When
verification is to occur. Verification of eligible immigration status
shall be conducted by the IHA simultaneously with verification of other
aspects of eligibility for assistance under a section 214 covered
program. (See paragraph (h) of this section.) The IHA shall verify
eligible immigration status in accordance with the INS procedures
described in this section.
(2) Primary verification. (i) Automated verification system.
Primary verification of the immigration status of the person is
conducted by the IHA through the INS automated system (INS Systematic
for Alien Verification for Entitlements (SAVE)). The INS SAVE system
provides access to names, file numbers and admission numbers of
noncitizens.
(ii) Failure of primary verification to confirm eligible
immigration status. If the INS SAVE system does not verify eligible
immigration status, secondary verification must be performed.
(3) Secondary verification. (i) Manual search of INS records.
Secondary verification is a manual search by the INS of its records to
determine an individual's immigration status. The IHA must request
secondary verification, within 10 days of receiving the results of the
primary verification, if the primary verification system does not
confirm eligible immigration status, or if the primary verification
system verifies immigration status that is ineligible for assistance
under a covered section 214 covered program.
(ii) Secondary verification initiated by IHA. Secondary
verification is initiated by the IHA forwarding photocopies of the
original INS documents listed in paragraph (k)(2) of this section
(front and back), attached to the INS document verification request
form G-845S (Document Verification Request), to a designated INS office
for review. (Form G-845S is available from the local INS Office.)
(iii) Failure of secondary verification to confirm eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the IHA shall issue to the family the
notice described in paragraph (m)(4) of this section, which includes
notification of appeal to the INS of the INS finding on immigration
status (see paragraph (m)(4)(iv) of this section).
(4) Exemption from liability for INS verification. The IHA shall
not be liable for any action, delay, or failure of the INS in
conducting the automated or manual verification.
(m) Delay, denial, or termination of assistance. (1) Restrictions
on delay, denial, or termination of assistance. Assistance to an
applicant shall not be delayed or denied, and assistance to a tenant
shall not be delayed, denied, or terminated, on the basis of ineligible
immigration status of a family member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the tenant's dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
tenant's dwelling unit;
(iv) The INS appeals process under paragraph (n) of this section
has not been concluded;
(v) For a tenant, the IHA hearing process under paragraph (o) of
this section has not been concluded;
(vi) Assistance is prorated in accordance with paragraph (s) of
this section;
(vii) Assistance for a mixed family is continued in accordance with
paragraph (r) of this section; or
(viii) Deferral of termination of assistance is granted in
accordance with paragraph (r) of this section.
(2) When delay of assistance to applicant is permissible.
Assistance to an applicant may be delayed after the conclusion of the
INS appeal process, but not denied until the conclusion of the IHA
informal hearing process, if an informal hearing is requested by the
family.
(3) Events causing denial or termination of assistance. Assistance
to an applicant shall be denied, and a tenant's assistance shall be
terminated, in accordance with the procedures of this section, upon the
occurrence of any of the following events:
(i) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date specified in paragraph
(h) of this section, or by the expiration of any extension granted in
accordance with paragraph (i) of this section; or
(ii) The evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and second verification does not
verify eligible immigration status of a family member; and
(iii) The family does not pursue INS appeal (as provided in
paragraph (n) of this section) or IHA informal hearing rights (as
provided in paragraph (o) of this section); or
(iv) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family
member.
(4) Notice of denial or termination of assistance. The notice of
denial or termination of assistance shall advise the family:
(i) That financial assistance will be denied or terminated, and
provide a brief explanation of the reasons for the proposed denial or
termination of assistance;
(ii) That the family may be eligible for proration of assistance as
provided in paragraph (s) of this section;
(iii) In the case of a tenant, the criteria and procedures for
obtaining relief under the preservation of families provisions in
paragraph (r) of this section;
(iv) That the family has a right to request an appeal to the INS of
the results of the secondary verification of immigration status, and to
submit additional documentation or a written explanation in support of
the appeal, in accordance with the procedures of paragraph (n) this
section;
(v) That the family has a right to request an informal hearing with
the IHA either upon completion of the INS appeal or in lieu of the INS
appeal, as provided in paragraph (n) of this section;
(vi) For applicants, the notice shall advise that assistance may
not be delayed until the conclusion of the INS appeal process, but
assistance may be delayed during the pendency of the IHA informal
hearing process.
(n) Appeal to the INS--(1) Submission of request for appeal to IHA.
Upon receipt of notification by the IHA that INS secondary verification
failed to confirm eligible immigration status, the family may request
an appeal to the INS by communicating that request to the IHA within 14
days of the date the IHA mails or delivers the notice under paragraph
(m)(4) of this section.
(2) Extension of time to request an appeal. The IHA shall extend
the period of time for requesting an appeal (for a specified period)
upon good cause shown.
(3) Forwarding the appeal to INS. If the family requests an appeal
to the INS, the IHA shall forward to the designated INS office any
additional documentation or written explanation provided by the family
in support of the appeal. This material must include a copy of the INS
document verification request form G-845S (used to process the
secondary verification request) and a cover letter indicating that the
family is requesting an appeal of the INS immigration status
verification results. (Form G-845S is available from the local INS
Office.)
(4) Decision by INS--(i) When decision will be issued. The INS will
issue to the IHA a decision within 30 days of its receipt of
documentation concerning the family's appeal of the verification of
immigration status. If, for any reason, the INS is unable to issue a
decision within the 30 day time period, the INS will inform the IHA of
the reasons for the delay, and the IHA will inform the family of the
reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the IHA receives the INS decision, the IHA shall
notify the family of the INS determination, of the reasons for the
determination, and of the family's right to request an informal hearing
on the IHA's ineligibility determination in accordance with the
procedures of paragraph (o) of this section.
(5) No delay, denial or termination of assistance until completion
of INS appeal process; direct appeal to INS. Pending the completion of
the INS appeal under this section, assistance may not be delayed,
denied or terminated on the basis of immigration status.
(o) Informal hearing.--(1) When request for hearing is to be made.
After notification of the INS decision, or in lieu of request of appeal
to the INS, the family may request that the IHA provide a hearing. This
request must be made either within 14 days of the date the IHA mails or
delivers the notice under paragraph (m)(4) of this section, or within
14 days of the mailing of the INS appeal decision issued in accordance
with paragraph (n)(4) of this section (established by the date of
postmark).
(2) Extension of time to request hearing. The IHA shall extend the
period of time for requesting a hearing (for a specified period) upon
good cause shown.
(3) Informal hearing procedures. (i) For tenants, the procedures
for the hearing before the IHA are set forth in Sec. 905.340.
(ii) For applicants, the procedures for the informal hearing before
the IHA are as follows:
(A) Hearing before an impartial individual. The applicant shall be
provided a hearing before any person(s) designated by the IHA
(including an officer or employee of the IHA), other than a person who
made or approved the decision under review, and other than a person who
is a subordinate of the person who made or approved the decision;
(B) Examination of evidence. The applicant shall be provided the
opportunity to examine and copy, at the applicant's expense and at a
reasonable time in advance of the hearing, any documents in the
possession of the IHA pertaining to the applicant's eligibility status,
or in the possession of the INS (as permitted by INS requirements),
including any records and regulations that may be relevant to the
hearing;
(C) Presentation of evidence and arguments in support of eligible
status. The applicant shall be provided the opportunity to present
evidence and arguments in support of eligible status. Evidence may be
considered without regard to admissibility under the rules of evidence
applicable to judicial proceedings;
(D) Controverting evidence of the project owner. The applicant
shall be provided the opportunity to controvert evidence relied upon by
the IHA and to confront and cross-examine all witnesses on whose
testimony or information the IHA relies;
(E) Representation. The applicant shall be entitled to be
represented by an attorney, or other designee, at the applicant's
expense, and to have such person make statements on the applicant's
behalf;
(F) Interpretive services. The applicant shall be entitled to
arrange for an interpreter to attend the hearing, at the expense of the
applicant or the IHA, as may be agreed upon by both parties;
(G) Hearing to be recorded. The applicant shall be entitled to have
the hearing recorded by audiotape (a transcript of the hearing may, but
is not required to, be provided by the IHA); and
(H) Hearing decision. The IHA shall provide the applicant with a
written final decision, based solely on the facts presented at the
hearing within 14 days of the date of the informal hearing. The
decision shall state basis for the decision.
(p) Judicial relief. A decision against a family member under the
INS appeal process or the IHA informal hearing process does not
preclude the family from exercising the right, that may otherwise be
available, to seek redress directly through judicial procedures.
(q) Retention of documents. The IHA shall retain for a minimum of 5
years the following documents that may have been submitted to the IHA
by the family or provided to the IHA as part of the INS appeal or the
IHA informal hearing process:
(1) The application for financial assistance;
(2) The form completed by the family for income re-examination;
(3) Photocopies of any original documents (front and back),
including original INS documents;
(4) The signed verification consent form;
(5) The INS verification results;
(6) The request for an INS appeal;
(7) The final INS determination;
(8) The request for an IHA informal hearing; and
(9) The final hearing decision.
(r) Preservation of mixed families and other families. (1)
Assistance available for mixed families. (i) Assistance available for
tenant mixed families. For a mixed family assisted under a section 214
covered program on [insert the effective date of the final rule], one
of the following three types of assistance may be available to the
family:
(A) Continued assistance (see paragraph (r)(2) of this section);
(B) Prorated assistance (see paragraph (s) of this section); or
(C) Temporary deferral of termination of assistance (see paragraph
(r)(3) of this section).
(ii) Assistance available for applicant mixed families. Prorated
assistance is also available for mixed families applying for
assistance, as provided in paragraph (s) of this section.
(iii) Assistance available to other families in occupancy. For
families receiving assistance under a Section 214 covered program on
the [insert the effective date of the final rule] and who have no
members with eligible immigration status, the IHA may grant the family
temporary deferral of termination of assistance.
(2) Continued assistance. A mixed family may receive continued
housing assistance if all of the following conditions are met:
(i) The family was receiving assistance under a section 214 covered
program on [insert the effective date of the final rule];
(ii) The family's head of household or spouse has eligible
immigration status as described in paragraph (b)(2) of this section;
and
(iii) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(3) Temporary deferral of termination of assistance. (i)
Eligibility for this type of assistance. If a mixed family qualifies
for prorated assistance (and does not qualify for continued
assistance), but decides not to accept prorated assistance, or if a
family has no members with eligible immigration status, the family may
be eligible for temporary deferral of termination of assistance if
necessary to permit the family additional time for the orderly
transition of those family members with ineligible status, and any
other family members involved, to other affordable housing. Other
affordable housing is used in the context of transition of an
ineligible family from a rent level that reflects HUD assistance to a
rent level that is unassisted; the term refers to housing that is not
substandard, that is of appropriate size for the family and that can be
rented for an amount not exceeding the amount that the family pays for
rent, including utilities, plus 25 percent.
(ii) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate
deferral period shall not exceed a period of three years.
(iii) Notification requirements for beginning of each deferral
period. At the beginning of each deferral period, the IHA must inform
the family of its ineligibility for financial assistance and offer the
family information concerning, and referrals to assist in finding,
other affordable housing.
(iv) Determination of availability of affordable housing at end of
each deferral period. Before the end of each deferral period, the IHA
must:
(A) Make a determination of the availability of affordable housing
of appropriate size based on evidence of conditions which when taken
together will demonstrate an inadequate supply of affordable housing
for the area in which the project is located, the CHAS (if applicable;
CHAS refers to the Comprehensive Housing Affordability Strategy
described in 24 CFR part 91), the IHA's own knowledge of the
availability of affordable housing, and on evidence of the tenant
family's efforts to locate such housing; and
(B) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination will
be deferred again (provided that the granting of another deferral will
not result in aggregate deferral periods that exceed three years), and
a determination was made that other affordable housing is not
available; or
(C) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination of
financial assistance will not be deferred because either granting
another deferral will result in aggregate deferral periods that exceed
three years, or a determination has been made that other affordable
housing is available.
(v) Notification of decision on family preservation assistance. An
IHA shall notify the family of its decision concerning the family's
qualification for assistance under this section. If the family is
ineligible for assistance under this section, the notification shall
state the reasons, which must be based on relevant factors. For tenant
families, the notice also shall inform the tenant family of any appeal
rights.
(s) Proration of assistance. (1) Applicability. This section
applies to a mixed family other than a family receiving continued
assistance under paragraph (r)(2) of this section, or other than a
family for which termination of assistance is temporarily deferred
under paragraph (r)(3) of this section.
(2) Method of prorating assistance. The IHA shall prorate the
family's assistance by:
(i) Step 1. Determining total tenant payment in accordance with
Sec. 905.325 (annual income includes income of all family members,
including any family member who has not established eligible
immigration status).
(ii) Step 2. Subtracting the total tenant payment from a HUD-
supplied ``Indian housing maximum rent'' applicable to the unit or the
housing authority. (``Indian housing maximum rent'' shall be determined
by HUD using the 95th percentile rent for the housing authority.) The
result is the maximum subsidy for which the family could qualify if all
members were eligible (``family maximum subsidy'').
(iii) Step 3. Dividing the family maximum subsidy by the number of
persons in the family (all persons) to determine the maximum subsidy
per each family member who has citizenship or eligible immigration
status (``eligible family member'). The subsidy per eligible family
member is the ``member maximum subsidy''.
(iv) Step 4. Multiplying the member maximum subsidy by the number
of family members who have citizenship or eligible immigration status
(``eligible family members'').
(v) Step 5. The product of steps 1-4, as set forth in paragraph
(s)(2) of this section is the amount of subsidy for which the family is
eligible (``eligible subsidy''). The family's rent is the ``public
housing maximum rent'' minus the amount of the eligible subsidy.
(t) Prohibition of assistance to noncitizen students. (1) General.
The provisions of this section permitting continued assistance,
prorated assistance or temporary deferral of termination of assistance
for certain families, do not apply to any person who is determined to
be a noncitizen student, as defined in paragraph (t)(2) of this
section, or the family of the noncitizen student, as described in
paragraph (t)(3) of this section.
(2) Noncitizen student. For purposes of this part, a noncitizen
student is defined as a noncitizen who:
(i) Has a residence in a foreign country that the person has no
intention of abandoning;
(ii) Is a bona fide student qualified to pursue a full course of
study; and
(iii) Is admitted to the United States temporarily and solely for
purposes of pursuing such a course of study at an established
institution of learning or other recognized place of study in the
United States, particularly designated by such person and approved by
the Attorney General after consultation with the Department of
Education of the United States, which institution or place of study
shall have agreed to report to the Attorney General the termination of
attendance of each nonimmigrant student (and if any such institution of
learning or place of study fails to make such reports promptly the
approval shall be withdrawn).
(3) Family of noncitizen student. The prohibition on providing
assistance to a noncitizen student as described in paragraph (t)(1) of
this section also extends to the noncitizen spouse of the noncitizen
student and minor children of any noncitizen student if the spouse or
children are accompanying the student or following to join such
student. The prohibition on providing assistance to a noncitizen
student does not extend to the citizen spouse of the noncitizen student
and the children of the citizen spouse and noncitizen student.
(u) Protection from liability for IHAs, State, Tribal, and local
government agencies and officials. (1) Protection from liability for
IHAs. HUD will not take any compliance, disallowance, penalty, or other
regulatory action against an IHA with respect to any error in its
determination of eligibility for assistance based on citizenship or
immigration status:
(i) If the IHA established eligibility based upon verification of
eligible immigration status through the verification system described
in paragraph (l) of this section;
(ii) Because the IHA was required to provide an opportunity for the
applicant or family to submit evidence in accordance with paragraphs
(h) and (i) of this section;
(iii) Because the IHA was required to wait for completion of INS
verification of immigration status in accordance with paragraph (l) of
this section;
(iv) Because the IHA was required to wait for completion of the INS
appeal process provided in accordance with paragraph (n) of this
section; or
(v) Because the IHA was required to provide an informal hearing in
accordance with paragraph (o) of this section.
(2) Protection from liability for State, Tribal and local
government agencies and officials. State, Tribal, and local government
agencies and officials shall not be liable for the design or
implementation of the verification system described in paragraph (l) of
this section and the IHA informal hearing provided under paragraph (o)
of this section, so long as the implementation by the State, Tribal, or
local government agency or official is in accordance with prescribed
HUD rules and requirements.
88. Section 905.315 would be amended by redesignating paragraphs
(a)(i) and (a)(ii) as (a)(1) and (a)(2), respectively; by redesignating
existing paragraphs (a)(2) and (a)(3) as paragraphs (b) and (c)
respectively; and by adding a new paragraph (d), to read as follows:
Sec. 905.315 Initial determination, verification, and reexamination of
family income and composition.
* * * * *
(d) Implementation of verification of citizenship or eligible
immigration status. The IHA shall follow the procedures required by
Sec. 905.310 for determining citizenship or eligible immigration status
before initial occupancy, and, for tenants admitted before [insert the
effective date of the final rule], at the first reexamination of family
income and composition after that date. Thereafter, at the annual
reexaminations of family income and composition, the IHA shall follow
the requirements of Sec. 905.310 concerning verification of the
immigration status of any new family member. The family shall comply
with the IHA's policy regarding required interim reporting of changes
in the family's income and composition. If the IHA is informed of a
change in the family income or other circumstances between regularly
scheduled reexaminations, the IHA, upon consultation with the family
and verification of the information, shall promptly make any
adjustments appropriate in the rent or Homebuyer payment amount or take
appropriate action concerning the addition of a family member who is a
noncitizen with ineligible immigration status.
PART 912--DEFINITION OF FAMILY AND OTHER RELATED TERMS; OCCUPANCY
BY SINGLE PERSONS
89. The authority citation for part 912 would be revised to read as
follows:
Authority: 42 U.S.C. 1436a, 1437a, and 3535(d)
90. Section 912.1 would be amended by changing the period at the
end of paragraph (a)(2) to a semicolon and adding the word ``and''
following the semicolon; and by adding a new paragraph (a)(3), to read
as follows:
Sec. 912.1 Purpose and applicability.
(a) * * *
(3) Implements the statutory prohibition against making assistance
under the United States Housing Act of 1937 (``Act'') (42 U.S.C. 1437
et seq.) available for the benefit of noncitizens with ineligible
immigration status.
* * * * *
91. Section 912.2 would be amended by inserting definitions in
alphabetical order for the terms ``Child,'' ``Citizen,'' ``Evidence of
citizenship or eligible immigration status,'' ``Head of household,''
``HUD,'' ``Mixed family,'' ``National,'' ``Noncitizen,'' ``Section
214,'' and ``Section 214 covered program,'' to read as follows:
Sec. 912.2 Definitions.
Child. A member of the family, other than the family head or a
spouse, who is under 18 years of age.
Citizen. A citizen or national of the United States.
* * * * *
Evidence of citizenship or eligible immigration status. The
documents which must be submitted to evidence citizenship or eligible
immigration status. (See Sec. 912.6(b).)
* * * * *
Head of household. The adult member of the family who is the head
of the household for purposes of determining income eligibility and
rent.
HUD. The Department of Housing and Urban Development.
* * * * *
Mixed family. A family whose members include those with citizenship
or eligible immigration status, and those without citizenship or
eligible immigration status.
National. A person who owes permanent allegiance to the United
States, for example, as a result of birth in a United States territory
or possession.
Noncitizen. A person who is neither a citizen nor national of the
United States.
* * * * *
Section 214. Section 214 of the Housing and Community Development
Act of 1980, as amended (42 U.S.C. 1436a). Section 214 restricts HUD
from making financial assistance available for noncitizens unless they
meet one of the six statutory categories of eligible immigration
status.
Section 214 covered programs. Programs to which the restrictions
imposed by section 214 apply are programs that make available financial
assistance pursuant to the United States Housing Act of 1937 (42 U.S.C.
1437-1440), section 235 or section 236 of the National Housing Act (12
U.S.C. 1715z and 1715z-1) and section 101 of the Housing and Urban
Development Act of 1965 (12 U.S.C. 1701s).
* * * * *
92. Part 912 would be amended by redesignating Secs. 912.1 through
912.4 as subpart A, and by adding the subpart heading to read,
``Subpart A--General'', and by adding a new subpart B consisting of
Secs. 912.5 through 912.14, to read as follows:
Subpart B--Restrictions on Assistance to Noncitizens
Sec.
912.5 General.
912.5a Requirements concerning documents.
912.6 Submission of evidence of citizenship or eligible immigration
status.
912.7 Documents of eligible immigration status.
912.8 Verification of eligible immigration status.
912.9 Delay, denial, or termination of assistance.
912.10 Preservation of mixed families and other families.
912.11 Proration of assistance.
912.12 Prohibition of assistance to noncitizen students.
912.13 Compliance with nondiscrimination requirements.
912.14 Protection from liability for PHAs, State, local, and tribal
government agencies and officials.
Subpart B--Restrictions on Assistance to Noncitizens
Sec. 912.5 General.
(a) Restrictions on assistance. Assistance provided under a section
214 covered program is restricted to:
(1) Citizens, or
(2) Noncitizens who have eligible immigration status in one of the
following categories:
(i) A noncitizen lawfully admitted for permanent residence, as
defined by section 101(a)(20) of the Immigration and Nationality Act
(INA), as an immigrant, as defined by section 101(a)(15) of the INA (8
U.S.C. 1101(a)(20) and 1101(a)(15), respectively) [immigrants]. (This
category includes a noncitizen admitted under section 210 or 210A of
the INA (8 U.S.C. 1160 or 1161) [special agricultural worker], who has
been granted lawful temporary resident status);
(ii) A noncitizen who entered the United States before January 1,
1972, or such later date as enacted by law, and has continuously
maintained residence in the United States since then, and who is not
ineligible for citizenship, but who is deemed to be lawfully admitted
for permanent residence as a result of an exercise of discretion by the
Attorney General under section 249 of the INA (8 U.S.C. 1259);
(iii) A noncitizen who is lawfully present in the United States
pursuant to an admission under section 207 of the INA (8 U.S.C. 1157)
[refugee status]; pursuant to the granting of asylum (which has not
been terminated) under section 208 of the INA (8 U.S.C. 1158) [asylum
status]; or as a result of being granted conditional entry under
section 203(a)(7) of the INA (8 U.S.C. 1153(a)(7)) before April 1,
1980, because of persecution or fear of persecution on account of race,
religion, or political opinion or because of being uprooted by
catastrophic national calamity;
(iv) A noncitizen who is lawfully present in the United States as a
result of an exercise of discretion by the Attorney General for
emergent reasons or reasons deemed strictly in the public interest
under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) [parole
status];
(v) A noncitizen who is lawfully present in the United States as a
result of the Attorney General's withholding deportation under section
243(h) of the INA (8 U.S.C. 1253(h)) [threat to life or freedom]; or
(vi) A noncitizen lawfully admitted for temporary or permanent
residence under section 245A of the INA (8 U.S.C. 1255a) [amnesty
granted under INA 245A].
(b) Family eligibility for assistance. (1) A family shall not be
eligible for assistance unless every member of the family residing in
the unit is determined to have eligible status, as described in
paragraph (a) of this section;
(2) Despite the ineligibility of one or more family members, a
mixed family may be eligible for one of the three types of assistance
provided in Sec. 912.10. A family without any eligible members and
receiving assistance on [insert the effective date of the final rule]
may be eligible for temporary deferral of termination of assistance as
provided in Sec. 912.10.
Sec. 912.5a Requirements concerning documents.
For any notice or document (decision, declaration, consent form,
etc.) that Secs. 912.5 through 912.14 require a PHA to provide to an
individual, or require that the PHA obtain the signature of the
individual, the PHA, where feasible, must arrange for the notice or
document to be provided to the individual in a language that is
understood by the individual if the individual is not proficient in
English. (See 24 CFR 8.6 of HUD's regulations for requirements
concerning communications with persons with disabilities.)
Sec. 912.6 Submission of evidence of citizenship or eligible
immigration status.
(a) General. Eligibility for assistance or continued assistance
under a section 214 covered program is contingent upon a family's
submission to the PHA of the documents described in paragraph (b) of
this section for each family member. If one or more family members do
not have citizenship or eligible immigration status, the family members
may exercise the election not to contend to have eligible immigration
status as provided in paragraph (e) of this section, and the provisions
of Sec. 912.10 shall apply.
(b) Evidence of citizenship or eligible immigration status. Each
family member, regardless of age, must submit the following evidence to
the PHA:
(1) For citizens, the evidence consists of a signed declaration of
U.S. citizenship;
(2) For noncitizens who are 62 years of age or older or who will be
62 years of age or older and receiving assistance under a section 214
covered program on [insert the effective date of the final rule], the
evidence consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document.
(3) For all other noncitizens, the evidence consists of:
(i) A signed declaration of eligible immigration status;
(ii) The INS documents listed in Sec. 912.7; and
(iii) A signed verification consent form.
(c) Declaration. For each family member, the family must submit to
the PHA a written declaration, signed under penalty of perjury, by
which the family member declares whether he or she is a U.S. citizen or
a noncitizen with eligible immigration status:
(1) For each adult, the declaration must be signed by the adult.
(2) For each child, the declaration must be signed by an adult
residing in the assisted dwelling unit who is responsible for the
child.
(d) Verification consent form. (1) Who signs. Each noncitizen who
declares eligible immigration status, must sign a verification consent
form as follows:
(i) For each adult, the form must be signed by the adult.
(ii) For each child, the form must be signed by an adult member of
the family residing in the assisted dwelling unit who is responsible
for the child.
(2) Notice of release of evidence by PHA. The verification consent
form shall provide that evidence of eligible immigration status may be
released by the PHA, without responsibility for the further use or
transmission of the evidence by the entity receiving it, to:
(i) HUD as required by HUD;
(ii) The INS; and, if applicable;
(iii) Another Federal agency, or a State or local government agency
in accordance with Federal, State or local law that requires the
release of the evidence to that agency.
(3) Notice of release of evidence by HUD. The verification consent
form also shall notify the individual of the possible release of
evidence of eligible immigration status by HUD. Evidence of eligible
immigration status shall only be released to the INS for purposes of
establishing eligibility for financial assistance and not for any other
purpose. HUD is not responsible for the further use or transmission of
the evidence or other information by the INS.
(e) Individuals who do not contend to have eligible immigration
status. If one or more members of a family elect not to contend that
they have eligible immigration status and the other members of the
family establish their citizenship or eligible immigration status, the
family may be considered for prorated assistance under Sec. 912.11
despite the fact that no declaration or documentation of eligible
status is submitted by one or more members of the family. The family
must, however, identify to PHA the family member (or members) who will
elect not to contend that he or she has eligible immigration status.
(f) Notification of requirements of section 214. (1) Timing of
notice. Notification of the requirement to submit evidence of
citizenship or eligible immigration status, as required by this
section, or to elect not to contend that one has eligible immigration
status, as allowed by paragraph (e) of this section, shall be given by
the PHA as follows:
(i) Applicant's notice. Notification of the requirement to submit
evidence of eligible status shall be given to each applicant at the
time of application for financial assistance. Families whose
applications are pending on [insert the effective date of the final
rule] shall be notified of the requirements to submit evidence of
eligible status as soon as possible after [insert the effective date of
the final rule].
(ii) Notice to families already receiving assistance. For a family
in occupancy on [insert the effective date of the final rule],
notification of the requirement to submit evidence of eligible status
shall be given to each at the time of, and together with, the PHA's
notice of the first regular reexamination after that date, but not
later than one year following [insert the effective date of the final
rule].
(2) Form and content of notice. The notice shall:
(i) State that financial assistance is contingent upon the
submission and verification, as appropriate, of the evidence of
citizenship or eligible immigration status, as required by this
section; and
(ii) Describe the type of evidence that must be submitted and state
the time period in which that evidence must be submitted (see paragraph
(g) of this section concerning when evidence must be submitted); and
(iii) State that assistance will be prorated, denied or terminated,
as appropriate, upon a final determination of ineligibility after all
appeals have been exhausted (see Sec. 912.9 concerning INS appeal, and
PHA informal hearing process) or, if appeals are not pursued, at a time
to be specified in accordance with HUD requirements. Families already
receiving assistance also shall be informed of how to obtain assistance
under the preservation of families provisions of Sec. 912.10.
(g) When evidence of eligible status is required to be submitted.
The PHA shall require evidence of eligible status to be submitted at
the times specified in paragraph (g) of this section, subject to any
extension granted in accordance with paragraph (h) of this section.
(1) Applicants. For applicants, the PHA must ensure that evidence
of eligible status is submitted not later than the date the PHA
anticipates or has knowledge that verification of other aspects of
eligibility for assistance will occur (see Sec. 912.8(a)).
(2) Families already receiving assistance. For a family already
receiving the benefit of assistance in a covered program on [insert the
effective date of the final rule], the required evidence shall be
submitted at the first regular reexamination after [insert the
effective date of the final rule], in accordance with program
requirements.
(3) New occupants of assisted units. For any new family members,
the required evidence shall be submitted at the first interim or
regular reexamination following the person's occupancy.
(4) Changing participation in a HUD program. Whenever a family
applies for admission to a section 214 covered program, evidence of
eligible status is required to be submitted in accordance with the
requirements of this part unless the family already has submitted the
evidence to the PHA for a covered program.
(5) One-time evidence requirement for continuous occupancy. For
each family member, the family is required to submit evidence of
eligible status one time during continuously assisted occupancy under
any covered program.
(h) Extensions of time to submit evidence of eligible status. (1)
When extension must be granted. The PHA shall extend the time provided
in paragraph (g) of this section, to submit evidence of eligible
immigration status if the family member:
(i) Submits the declaration required under Sec. 912.6(b) certifying
that any person for whom required evidence has not been submitted is a
noncitizen with eligible immigration status; and
(ii) Certifies that the evidence needed to support a claim of
eligible immigration status is temporarily unavailable, additional time
is needed to obtain and submit the evidence, and prompt and diligent
efforts will be undertaken to obtain the evidence.
(2) Prohibition on indefinite extension period. Any extension of
time, if granted, shall be for a specific period of time. The
additional time provided should be sufficient to allow the family the
time to obtain the evidence needed. The PHA's determination of the
length of the extension needed, shall be based on the circumstances of
the individual case.
(3) Grant or denial of extension to be in writing. The PHA's
decision to grant or deny an extension as provided in paragraph (h)(1)
of this section shall be issued to the family by written notice. If the
extension is granted, the notice shall specify the extension period
granted. If the extension is denied, the notice shall explain the
reasons for denial of the extension.
(i) Failure to submit evidence or establish eligible immigration
status. If the family fails to submit required evidence of eligible
immigration status within the time period specified in the notice, or
any extension granted in accordance with paragraph (h) of this section,
or if the evidence is timely submitted but fails to establish eligible
immigration status, the PHA shall proceed to deny, prorate or terminate
assistance, or provide continued assistance or temporary deferral of
termination of assistance, as appropriate, in accordance with the
provisions of Secs. 912.9 and 912.10 respectively.
Sec. 912.7 Documents of eligible immigration status.
(a) General. A PHA shall request and review original documents of
eligible immigration status. The PHA shall retain photocopies of the
documents for its own records and return the original documents to the
family.
(b) Acceptable evidence of eligible immigration status. The
original of one of the following documents is acceptable evidence of
eligible immigration status, subject to verification in accordance with
Sec. 912.8:
(1) Form I-551, Alien Registration Receipt Card (for permanent
resident aliens);
(2) Form I-94, Arrival-Departure Record, with one of the following
annotations:
(i) ``Admitted as Refugee Pursuant to Section 207'';
(ii) ``Section 208'' or ``Asylum'';
(iii) ``Section 243(h)'' or ``Deportation stayed by Attorney
General'';
(iv) ``Paroled Pursuant to Sec. 212(d)(5) of the INA'';
(3) If Form I-94, Arrival-Departure Record, is not annotated, then
accompanied by one of the following documents:
(i) A final court decision granting asylum (but only if no appeal
is taken);
(ii) A letter from an INS asylum officer granting asylum (if
application is filed on or after October 1, 1990) or from an INS
district director granting asylum (if application filed before October
1, 1990);
(iii) A court decision granting withholding or deportation; or
(iv) A letter from an INS asylum officer granting withholding of
deportation (if application filed on or after October 1, 1990).
(4) Form I-688, Temporary Resident Card, which must be annotated
``Section 245A'' or ``Section 210'';
(5) Form I-688B, Employment Authorization Card, which must be
annotated ``Provision of Law 274a.12(11)'' or ``Provision of Law
274a.12'';
(6) A receipt issued by the INS indicating that an application for
issuance of a replacement document in one of the above-listed
categories has been made and the applicant's entitlement to the
document has been verified; or
(c) Other acceptable evidence. If other documents are determined to
constitute acceptable evidence of eligible immigration status, they
will be announced by HUD in a notice published in the Federal Register.
Sec. 912.8 Verification of eligible immigration status.
(a) When verification is to occur. Verification of eligible
immigration status shall be conducted by the PHA simultaneously with
verification of other aspects of eligibility for assistance under a
Section 214 covered program. (See Sec. 912.6(g).) The PHA shall verify
eligible immigration status in accordance with the INS procedures
described in this section.
(b) Primary verification. (1) Automated verification system.
Primary verification of the immigration status of the person is
conducted by the PHA through the INS automated system (INS Systematic
for Alien Verification for Entitlements (SAVE)). The INS SAVE system
provides access to names, file numbers and admission numbers of
noncitizens.
(2) Failure of primary verification to confirm eligible immigration
status. If the INS SAVE system does not verify eligible immigration
status, secondary verification must be performed.
(c) Secondary verification. (1) Manual search of INS records.
Secondary verification is a manual search by the INS of its records to
determine an individual's immigration status. The PHA must request
secondary verification, within 10 days of receiving the results of the
primary verification, if the primary verification system does not
confirm eligible immigration status, or if the primary verification
system verifies immigration status that is ineligible for assistance
under a covered Section 214 covered program.
(2) Secondary verification initiated by PHA. Secondary verification
is initiated by the PHA forwarding photocopies of the original INS
documents listed in Sec. 912.7 (front and back), attached to the INS
document verification request form G-845S (Document Verification
Request), to a designated INS office for review. (Form G-845S is
available from the local INS Office.)
(3) Failure of secondary verification to confirm eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the IHA shall issue to the family the
notice described in Sec. 912.9(d), which includes notification of
appeal to the INS of the INS finding on immigration status (see
Sec. 912.9(d)(4)).
(d) Exemption from liability for INS verification. The PHA shall
not be liable for any action, delay, or failure of the INS in
conducting the automated or manual verification.
Sec. 912.9 Delay, denial, or termination of assistance.
(a) General. Assistance to a family may not be delayed, denied, or
terminated because of the immigration status of a family member except
as provided in this section.
(b) Restrictions on delay, denial, or termination of assistance.
(1) General. Assistance to an applicant shall not be delayed or denied,
and assistance to a tenant shall not be delayed, denied, or terminated,
on the basis of ineligible immigration status of a family member if:
(i) The primary and secondary verification of any immigration
documents that were timely submitted has not been completed;
(ii) The family member for whom required evidence has not been
submitted has moved from the tenant's dwelling unit;
(iii) The family member who is determined not to be in an eligible
immigration status following INS verification has moved from the
tenant's dwelling unit;
(iv) The INS appeals process under Sec. 912.9(e) has not been
concluded;
(v) For a tenant, the PHA hearing process under Sec. 912.9(f) has
not been concluded;
(vi) Assistance is prorated in accordance with Sec. 912.11;
(vii) Assistance for a mixed family is continued in accordance with
Sec. 912.10; or
(viii) Deferral of termination of assistance is granted in
accordance with Sec. 912.10.
(2) When delay of assistance to an applicant is permissible.
Assistance to an applicant may be delayed after the conclusion of the
INS appeal process, but not denied until the conclusion of the PHA
informal hearing process, if an informal hearing is requested by the
family.
(c) Events causing denial or termination of assistance. Assistance
to an applicant shall be denied, and a tenant's assistance shall be
terminated, in accordance with the procedures of this section, upon the
occurrence of any of the following events:
(1) Evidence of citizenship (i.e., the declaration) and eligible
immigration status is not submitted by the date specified in
Sec. 912.6(g) or by the expiration of any extension granted in
accordance with Sec. 912.6(h); or
(2) Evidence of citizenship and eligible immigration status is
timely submitted, but INS primary and secondary verification does not
verify eligible immigration status of a family member; and
(3) The family does not pursue INS appeal or PHA informal hearing
rights as provided in this section; or
(4) INS appeal and informal hearing rights are pursued, but the
final appeal or hearing decisions are decided against the family
member.
(d) Notice of denial or termination of assistance. The notice of
denial or termination of assistance shall advise the family:
(1) That financial assistance will be denied or terminated, and
provide a brief explanation of the reasons for the proposed denial or
termination of assistance;
(2) That they may be eligible for proration of assistance as
provided under Sec. 912.11;
(3) In the case of a tenant, the criteria and procedures for
obtaining relief under the preservation of families provision in
Sec. 912.10;
(4) The family has a right to request an appeal to the INS of the
results of the secondary verification of immigration status and to
submit additional documentation or a written explanation in support of
the appeal in accordance with the procedures of paragraph (e) of this
section;
(5) The family has a right to request an informal hearing with the
PHA either upon completion of the INS appeal or in lieu of the INS
appeal as provided in paragraph (f) of this section;
(6) For applicants, the notice shall advise that assistance may not
be delayed until the conclusion of the INS appeal process, but
assistance may be delayed during the pendency of the PHA informal
hearing process.
(e) Appeal to the INS. (1) Submission of request for appeal to PHA.
Upon receipt of notification by the PHA that INS secondary verification
failed to confirm eligible immigration status, the family may request
an appeal to the INS by communicating that request to the PHA within 14
days of the date the PHA mails or delivers the notice under paragraph
(d) of this section.
(2) Extension of time to request an appeal. The PHA shall extend
the period of time for requesting an appeal (for a specified period)
upon good cause shown.
(3) Forwarding the appeal to INS. If the family requests an appeal
to the INS, the PHA shall forward to the designated INS office any
additional documentation or written explanation provided by the family
in support of the appeal. This material must include a copy of the INS
document verification request form G-845S (used to process the
secondary verification request) and a cover letter indicating that the
family is requesting an appeal of the INS immigration status
verification results.
(4) Decision by INS. (i) When decision will be issued. The INS will
issue to the PHA a decision within 30 days of its receipt of
documentation concerning the family's appeal of the verification of
immigration status. If, for any reason, the INS is unable to issue a
decision within the 30 day time period, the INS will inform the PHA of
the reasons for the delay, and the PHA will inform the family of the
reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the PHA receives the INS decision, the PHA shall
notify the family of the INS determination, of the reasons for the
determination, and of the family's right to request an informal hearing
on the PHA's ineligibility determination in accordance with the
procedures of paragraph (f) of this section.
(5) No delay, denial or termination of assistance until completion
of INS appeal process; direct appeal to INS. Pending the completion of
the INS appeal under this section, assistance may not be delayed,
denied or terminated on the basis of immigration status.
(f) Informal hearing. (1) When request for hearing is to be made.
After notification of the INS decision on appeal, or in lieu of request
of appeal to the INS, the family may request that the PHA provide a
hearing. This request must be made either within 14 days of the date
the PHA mails or delivers the notice under paragraph (d) of this
section, or within 14 days of the mailing of the INS appeal decision
issued in accordance with paragraph (e) of this section (established by
the date of postmark).
(2) Extension of time to request hearing. The PHA shall extend the
period of time for requesting a hearing (for a specified period) upon
good cause shown.
(3) Informal hearing procedures. (i) For tenants, the procedures
for the hearing before the PHA are set forth in 24 CFR part 966.
(ii) For applicants, the procedures for the informal hearing before
the PHA are as follows:
(A) Hearing before an impartial individual. The applicant shall be
provided a hearing before any person(s) designated by the PHA
(including an officer or employee of the PHA), other than a person who
made or approved the decision under review, and other than a person who
is a subordinate of the person who made or approved the decision;
(B) Examination of evidence. The PHA shall be provided the
opportunity to examine and copy at the applicant's expense, at a
reasonable time in advance of the hearing, any documents in the
possession of the PHA pertaining to the applicant's eligibility status,
or in the possession of the INS (as permitted by INS requirements),
including any records and regulations that may be relevant to the
hearing;
(C) Presentation of evidence and arguments in support of eligible
status. The applicant shall be provided the opportunity to present
evidence and arguments in support of eligible status. Evidence may be
considered without regard to admissibility under the rules of evidence
applicable to judicial proceedings;
(D) Controverting evidence of the project owner. The applicant
shall be provided the opportunity to controvert evidence relied upon by
the PHA and to confront and cross-examine all witnesses on whose
testimony or information the PHA relies;
(E) Representation. The applicant shall be entitled to be
represented by an attorney, or other designee, at the applicant's
expense, and to have such person make statements on the applicant's
behalf;
(F) Interpretive services. The applicant shall be entitled to
arrange for an interpreter to attend the hearing, at the expense of the
applicant or PHA, as may be agreed upon by both parties;
(G) Hearing to be recorded. The applicant shall be entitled to have
the hearing recorded by audiotape (a transcript of the hearing may, but
is not required to be provided by the PHA); and
(H) Hearing decision. The PHA shall provide the applicant with a
written final decision, based solely on the facts presented at the
hearing within 14 days of the date of the informal hearing.
(g) Judicial relief. A decision against a family member, issued in
accordance with paragraphs (e) or (f) of this section, does not
preclude the family from exercising the right, that may otherwise be
available, to seek redress directly through judicial procedures.
(h) Retention of documents. The PHA shall retain for a minimum of 5
years the following documents that may have been submitted to the PHA
by the family, or provided to the PHA as part of the INS appeal or the
PHA informal hearing process:
(1) The application for financial assistance;
(2) The form completed by the family for income re-examination;
(3) Photocopies of any original documents (front and back),
including original INS documents;
(4) The signed verification consent form;
(5) The INS verification results;
(6) The request for an INS appeal;
(7) The final INS determination;
(8) The request for a PHA informal hearing; and
(9) The final PHA hearing decision.
Sec. 912.10 Preservation of mixed families and other families.
(a) Assistance available for mixed families. (1) Assistance
available for tenant mixed families. For a mixed family assisted under
a Section 214 covered program on [insert the effective date of the
final rule], one of the following three types of assistance may be
available to the family:
(i) Continued assistance (see paragraph (b) of this section);
(ii) Prorated assistance (see Sec. 912.11); or
(iii) Temporary deferral of termination of assistance (see
paragraph (c) of this section).
(2) Assistance available for applicant mixed families. Prorated
assistance is also available for mixed families applying for assistance
as provided in Sec. 912.11.
(3) Assistance available to other families in occupancy. For
families receiving assistance under a Section 214 covered program on
the [insert the effective date of the final rule] and who have no
members with eligible immigration status, the PHA may grant the family
temporary deferral of termination of assistance.
(b) Continued assistance. A mixed family may receive continued
housing assistance if all of the following conditions are met:
(1) The family was receiving assistance under a Section 214 covered
program on [insert the effective date of the final rule];
(2) The family's head of household or spouse has eligible
immigration status as described in Sec. 912.5; and
(3) The family does not include any person (who does not have
eligible immigration status) other than the head of household, any
spouse of the head of household, any parents of the head of household,
any parents of the spouse, or any children of the head of household or
spouse.
(c) Temporary deferral of termination of assistance. (1)
Eligibility for this type of assistance. If a mixed family qualifies
for prorated assistance (and does not qualify for continued
assistance), but decides not to accept prorated assistance, or if a
family has no members with eligible immigration status, the family may
be eligible for temporary deferral of termination of assistance if
necessary to permit the family additional time for the orderly
transition of those family members with ineligible status, and any
other family members involved, to other affordable housing. Other
affordable housing is used in the context of transition of an
ineligible family from a rent level that reflects HUD assistance to a
rent level that is unassisted; the term refers to housing that is not
substandard, that is of appropriate size for the family and that can be
rented for an amount not exceeding the amount that the family pays for
rent, including utilities, plus 25 percent.
(2) Time limit on deferral period. If temporary deferral of
termination of assistance is granted, the deferral period shall be for
an initial period not to exceed six months. The initial period may be
renewed for additional periods of six months, but the aggregate
deferral period shall not exceed a period of three years.
(3) Notification requirements for beginning of each deferral
period. At the beginning of each deferral period, the PHA must inform
the family of its ineligibility for financial assistance and offer the
family information concerning, and referrals to assist in finding,
other affordable housing.
(4) Determination of availability of affordable housing at end of
each deferral period. Before the end of each deferral period, the PHA
must:
(i) Make a determination of the availability of affordable housing
of appropriate size based on evidence of conditions which when taken
together will demonstrate an inadequate supply of affordable housing
for the area in which the project is located, the CHAS (if applicable),
the PHA's own knowledge of the availability of affordable housing, and
on evidence of the tenant family's efforts to locate such housing; and
(ii) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination will
be deferred again (provided that the granting of another deferral will
not result in aggregate deferral periods that exceed three years), and
a determination was made that other affordable housing is not
available; or
(iii) Notify the tenant family in writing, at least 60 days in
advance of the expiration of the deferral period, that termination of
financial assistance will not be deferred because either granting
another deferral will result in aggregate deferral periods that exceed
three years, or a determination has been made that other affordable
housing is available.
(d) Notification of decision on family preservation assistance. A
PHA shall notify the family of it's decision concerning the family's
qualification for assistance under this section. If the family is
ineligible for assistance under this section, the notification shall
state the reasons, which must be based on relevant factors. For tenant
families, the notice also shall inform the family of any applicable
appeal rights.
Sec. 912.11 Proration of assistance.
(a) Applicability. This section applies to a mixed family other
than a family receiving continued assistance under Sec. 912.10(b), or
other than a family for which termination of assistance is temporarily
deferred under Sec. 912.10(c).
(b) Method of prorating assistance. The PHA shall prorate the
family's assistance by:
(1) Step 1. Determining total tenant payment in accordance with 24
CFR 913.107(a) (annual income includes income of all family members,
including any family member who has not established eligible
immigration status).
(2) Step 2. Subtracting the total tenant payment from a HUD-
supplied ``public housing maximum rent'' applicable to the unit or the
housing authority. (Public housing maximum rent shall be determined by
HUD using the 95th percentile rent for the housing authority.) The
result is the maximum subsidy for which the family could qualify if all
members were eligible (``family maximum subsidy'').
(3) Step 3. Dividing the family maximum subsidy by the number of
persons in the family (all persons) to determine the maximum subsidy
per each family member who has citizenship or eligible immigration
status (``eligible family member''). The subsidy per eligible family
member is the ``member maximum subsidy.''
(4) Step 4. Multiplying the member maximum subsidy by the number of
``eligible'' family members.
(5) Step 5. The product of steps 1-4, as set forth in paragraph
(b)(2) of this section is the amount of subsidy for which the family is
eligible (``eligible subsidy''). The family's rent is the ``public
housing maximum rent'' minus the amount of the eligible subsidy.
Sec. 912.12 Prohibition of assistance to noncitizen students.
(a) General. The provisions of Secs. 912.10 and 912.11, permitting
continued assistance, prorated assistance or temporary deferral of
termination of assistance for certain families, do not apply to any
person who is determined to be a noncitizen student, as defined in
paragraph (b) of this section, or the family of the noncitizen student,
as described in paragraph (c) of this section.
(b) Noncitizen student. For purposes of this part, a noncitizen
student is defined as a noncitizen who:
(1) Has a residence in a foreign country that the person has no
intention of abandoning;
(2) Is a bona fide student qualified to pursue a full course of
study; and
(3) Is admitted to the United States temporarily and solely for
purposes of pursuing such a course of study at an established
institution of learning or other recognized place of study in the
United States, particularly designated by such person and approved by
the Attorney General after consultation with the Department of
Education of the United States, which institution or place of study
shall have agreed to report to the Attorney General the termination of
attendance of each nonimmigrant student (and if any such institution of
learning or place of study fails to make such reports promptly the
approval shall be withdrawn).
(c) Family of noncitizen student. The prohibition on providing
assistance to a noncitizen student as described in paragraph (a) of
this section also extends to the noncitizen spouse of the noncitizen
student and minor children of any noncitizen student if the spouse or
children are accompanying the student or following to join such
student. The prohibition on providing assistance to a noncitizen
student does not extend to the citizen spouse of the noncitizen student
and the children of the citizen spouse and noncitizen student.
Sec. 912.13 Compliance with nondiscrimination requirements.
The PHA shall administer the restrictions on use of assisted
housing by noncitizens with ineligible immigration status imposed by
this part in conformity with the nondiscrimination requirements of,
including, but not limited to, title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d-2000d-5), section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794), the Fair Housing Act (42 U.S.C. 3601-3619), and
the regulations implementing these statutes, and other civil rights
statutes cited in the applicable program regulations. These statutes
prohibit, among other things, discriminatory practices on the basis of
race, color, national origin, sex, religion, age, disability and
familial status in the provision of housing.
Sec. 912.14 Protection from liability for PHAs, State, local, and
tribal government agencies and officials.
(a) Protection from liability for PHAs. HUD will not take any
compliance, disallowance, penalty, or other regulatory action against a
PHA with respect to any error in its determination of eligibility for
financial assistance based on citizenship or immigration status:
(1) If the PHA established eligibility based upon verification of
eligible immigration status through the verification system described
in Sec. 912.8;
(2) Because the PHA was required to provide an opportunity for the
applicant or family to submit evidence in accordance with Sec. 912.6;
(3) Because the PHA was required to wait for completion of INS
verification of immigration status in accordance with Sec. 912.8;
(4) Because the PHA was required to wait for completion of the INS
appeal process provided in accordance with Sec. 912.9(e); or
(5) Because the PHA was required to provide an informal hearing in
accordance with Sec. 912.9(f) or 24 CFR part 966.
(b) Protection from liability for State, local and tribal
government agencies and officials. State, local and tribal government
agencies and officials shall not be liable for the design or
implementation of the verification system described in Sec. 912.8, and
the informal hearings provided under Sec. 912.9(f) and 24 CFR part 966,
as long as the implementation by the State, local or tribal government
agency or official is in accordance with prescribed HUD rules and
requirements.
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
93. The authority citation for part 960 would be revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, and 3535(d).
94. In Sec. 960.204, paragraphs (a) and (d)(4) would be revised to
read as follows:
Sec. 960.204 PHA tenant selection policies.
(a) In addition to policies and regulations including preferences
and priorities established by the PHA for eligibility and admission to
its public housing projects pursuant to the Act, the ACC, and parts 912
and 913 of this chapter, each PHA shall adopt and implement policies
and procedures embodying standards and criteria for tenant selection
which take into consideration the needs of individual families for
public housing and the statutory purpose in developing and operating
socially and financially sound public housing projects that provide a
decent home and a suitable living environment and foster economic and
social diversity in the tenant body as a whole.
* * * * *
(d) * * *
(4) Provide for verification and documentation of information
relevant to acceptance or rejection of an applicant, including
documentation and verification of citizenship and eligible immigration
status under 24 CFR part 912.
* * * * *
95. In Sec. 960.206, paragraph (a) would be revised to read as
follows:
Sec. 960.206 Verification procedures.
(a) General. Adequate procedures must be developed to obtain and
verify information with respect to each applicant. (See parts 912 and
913 of this chapter, and 24 CFR parts 750 and 760.) Information
relative to the acceptance or rejection of an applicant or the grant or
denial of a Federal preference under Sec. 960.211 must be documented
and placed in the applicant's file.
* * * * *
96. Section 960.209 would be amended by adding two sentences at the
end of paragraph (a), by adding one sentence at the end of paragraph
(b), and by adding a new paragraph (c), to read as follows:
Sec. 960.209 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after [insert the
effective date of the final rule], the PHA shall follow the
requirements of 24 CFR part 912 concerning obtaining and processing
information on the citizenship or eligible immigration status of all
family members. Thereafter, at each regular reexamination, the PHA
shall follow the requirements of 24 CFR part 912 concerning
verification of the immigration status of any new family member.
(b) * * * At any interim reexamination after [insert the effective
of the final rule] when there is a new family member, the PHA shall
follow the requirements of 24 CFR part 912 concerning obtaining and
processing information on the citizenship or eligible immigration
status of the new family member.
(c) Termination. For provisions requiring termination of
participation for failure to establish citizenship or eligible
immigration status, see 24 CFR part 912.9, and also 24 CFR 912.10 for
provisions concerning assistance to certain mixed families (families
whose members include those with citizenship and eligible immigration
status and those without eligible immigration status) in lieu of
termination of assistance.
Dated: August 3, 1994.
Henry G. Cisneros,
Secretary.
[FR Doc. 94-20710 Filed 8-24-94; 8:45 am]
BILLING CODE 4210-32-P
