[Federal Register Volume 60, Number 53 (Monday, March 20, 1995)]
[Rules and Regulations]
[Pages 14816-14861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6358]
[[Page 14815]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 200 et al.
Restrictions on Assistance to Noncitizens; Final Rule
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules
and Regulations
[[Page 14816]]
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-95-1409; FR-2383-F-05]
RIN 2501-AA63
Restrictions on Assistance to Noncitizens
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule implements 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.
This final rule follows a proposed rule published on August 25, 1994,
and takes into consideration the public comment received on the August
25, 1994 proposed rule.
EFFECTIVE DATE: June 19, 1995.
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--Maggie
H. Taylor, 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) under the
Paperwork Reduction Act of 1980, and when approved and assigned OMB
control number(s), the control numbers will be published by separate
notice in the Federal Register.
II. Procedural Matters
A. Implementation of Section 214
HUD reiterates the statement made in the August 25, 1994 proposed
rule that the restrictions on the use of assisted housing by
noncitizens with ineligible immigration status (see 59 FR 43900-43901)
takes effect when this final rule takes effect, which is 90 days from
the date of publication in the Federal Register. Accordingly, until
that time, 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 Pivotal Date,
Rather Than ``Date of Enactment''
HUD also reiterates its statement in the August 25, 1994 proposed
rule concerning the use of the effective date of the final rule as the
pivotal date rather than the date of enactment of the statute (see 59
FR 43901). 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 to
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 this final rule is published and effective.
C. Nondiscrimination in Implementation of Section 214
Several commenters stated that implementation of Section 214 could
promote discrimination against certain minority and ethnic groups.
Section 214 is constructed in a way that allows little discretionary
action in its implementation. This was discussed to some extent in the
preamble to the proposed rule (59 FR 43900). As noted in the preamble
to the August 25, 1994 proposed rule, Section 214 is specific
concerning those noncitizens who are eligible for HUD housing
assistance. Section 214 also specifies the type of documentation that
must be submitted, the type of verification to be undertaken, and the
type of due process procedures available to individuals and families.
Therefore, a housing authority or project owner does not have the
discretion to accept or deny admission to certain categories of
noncitizens, but not others, because the statute specifies the eligible
categories. Further, the housing authority or project owner does not
have the discretion to request certain immigration documentation from
certain noncitizens, but not others, because the statute specifies the
acceptable documentation as does this rule. The housing authority or
project owner does not have the discretion to request documentation of
citizenship status because the statute, as does this rule, provides
that citizens only need execute a declaration of citizenship status,
signed under penalty of perjury. HUD is aware of the sensitive nature
of verifying eligible immigration status for HUD public housing and
assisted housing, and has included a separate section in the
implementing regulations setting forth applicable nondiscrimination
requirements. In [[Page 14817]] setting forth the applicable
nondiscrimination requirements, however, the final rule does not (nor
did the proposed rule) summarize the content of each nondiscrimination
statute or regulation (e.g., such as title VI of the Civil Rights Act
of 1964 or the Fair Housing Act). These nondiscrimination statutes and
regulations which are longstanding and applicable to almost all HUD
programs are familiar to housing authorities and project owners.
III. 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 several previous attempts by HUD to implement
Section 214 by regulation. Rules, both proposed and final, were
published in 1982 (47 FR 18914, and 47 FR 43674), 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.\1\
\1\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).
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This final rule, which takes effect on June 19, 1995, follows
publication of a proposed rule published on August 25, 1994 (59 FR
43900) and takes into consideration public comment received on this
proposed rule. The discussion of public comments on the August 25, 1994
proposed rule is set forth in Section V of this preamble.
IV. Differences Between the Proposed Rule and the Final Rule
As will be discussed in more detail in Section V of this preamble,
very few changes were made to the Section 214 proposed regulations at
the final rule stage because of the prescriptive nature of Section 214.
Section 214 specifies the HUD programs that are covered by the statute,
the categories of noncitizens that are eligible to receive HUD
financial assistance, the procedures to be used to verify immigration
status, the type 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. Accordingly, with
the exception of clarifying changes, and editorial corrections, the
principal changes made at the final rule stage are as follows:
1. Removing housing authorities (HAs) and project owners as the
``conduits'' in the INS appeals process. In response to public comment
(from both representatives of housing authorities and project owners
and representatives of resident groups), the final rule has been
revised to allow applicants and tenants to directly appeal to INS, and
INS to directly reply to applicants and tenants (i.e., without having
to go through housing authorities and project owners as intermediaries
in the INS appeal process).
2. Clarifying that proration of assistance is not discretionary on
the part of project owners and housing authorities. The proposed rule
was not clear on whether proration of assistance must be provided to
eligible mixed families, or whether the project owner or housing
authority had the discretion to offer proration of assistance. While
the majority of commenters appeared to understand that proration of
assistance must be offered to eligible mixed families, the final rule
clarifies that this is the case.
3. Strengthening the confidentiality and privacy of information
concerning immigration status. The final rule clarifies that HAs,
landlords and HUD officials cannot use the information in their
possession for any purpose other than determining an individual's
eligibility for housing assistance.
V. Discussion of Public Comments
This section presents the significant issues raised by the public
commenters on the August 25, 1994 proposed rule. Several commenters
offered editorial suggestions to certain of the regulatory suggestions,
or revised regulatory text. Each of these suggestions is not discussed
in this section. To the extent that the suggestion or revision helped
clarify the meaning of the regulatory text, the suggestion was adopted.
In several cases the editorial comment did not convey the appropriate
meaning of the regulatory text.
Application of Rule
Comment. Several commenters requested that the final rule
grandfather-in all current residents and apply the rule only to
applicants.
HUD Response. The language of Section 214, which provides for
preservation of assistance for those mixed families (those families who
contain eligible and ineligible members) currently residing in HUD
public housing and assisted housing, indicates that the Congress
contemplated that the restrictions on housing assistance imposed by
Section 214 would apply not only to applicants, but to tenants as well.
(See Section 214(c)).
Comment. Another commenter requested that the rule not require the
head of household or adult members to have legal immigration status,
and thus permit children who have such status to enter into lease
agreements and contracts on behalf of the adult members.
HUD Response. Section 214 restricts HUD from adopting the
suggestion of the commenter. Section 214(d) provides for adult member
to execute documents on behalf of children. Section 214(c) which
addresses continued assistance is the statutory provision which
requires the head of household or spouse to be a U.S. citizen or
national, or to have the eligible immigration status listed in Section
214. In the case of a mixed family with eligible children and two
ineligible adults (the adults are neither U.S. citizens or meet one of
the six specified categories of eligible immigration status) may be
eligible for prorated assistance, as provided in the August 25, 1994
proposed rule, and this final rule.
Comment. Another commenter requested that the rule clarify the
application of Section 214 vis a vis local/Federal preferences.
HUD Response. Preferences and eligibility for public housing and
HUD-assisted housing are two different matters. Families must first
meet the eligibility requirements for public housing and HUD-assisted
housing, and then local/Federal preferences are applied to eligible
families.
Delay Effective Date of Final Rule
Comment. Several commenters requested that HUD delay the effective
date of the final rule for six months because of the preparation and
staff training that will be needed by housing authorities in connection
with implementation of Section 214. [[Page 14818]]
HUD Response. HUD believes that the delay of 90 days is sufficient
time for housing authorities and HUD to prepare for implementation of
Section 214.
Guidance to Supplement Final Rule
Comment. Another commenter urged HUD to publish comprehensive
guidance in connection with the publication of the final rule.
HUD Response. HUD has every intention of issuing guidance to assist
HAs and project owners with implementation of Section 214.
Liability of Ineligible Tenants for Reimbursement of Benefits
Commenter. One commenter stated that an owner cannot be held
responsible for pursuit of recapture of payment of subsidies to
ineligible tenants.
HUD Response. The rule does not hold owners responsible for pursuit
of repayments of subsidies to ineligible tenants, but rather when it is
determined that HUD assistance was paid to an ineligible tenant, ``the
project owner is encouraged to refer to the case to the HUD Inspector
General's office for further investigation.'' (Emphasis added; see,
e.g., 24 CFR 200.192).
Recordkeeping
Comment. One commenter, referring to Sec. 200.186(h) (Retention of
documents), stated that the rule was not clear on which documents must
be retained for a period of five years--documents for all families or
just those families requesting an INS appeal.
HUD Response. Section 200.186(h) and the parallel provisions in
Secs. 812.9(h), 905.310(q), and 912.9(h) provide that the project owner
or housing authority ``shall retain for a minimum of five 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.'' (Emphasis added.)
Terminology
Comment. Five commenters stated that in lieu of the terms
``citizen'' and ``noncitizens,'' HUD should refer to the persons
eligible to apply for HUD housing as ``authorized persons.''
HUD Response. In using the term ``noncitizen,'' HUD's intention is
to convey the design of Section 214. Section 214 imposes no
restrictions on HUD housing assistance for citizens, including U.S.
nationals, but rather, imposes restrictions on the provision of housing
assistance to those who are not citizens, by limiting housing
assistance to certain categories of legally admitted noncitizens. All
categories of noncitizens who are authorized to reside in the United
States are not necessarily authorized to receive HUD housing assistance
(for example, student noncitizens).
Eligibility for HUD Financial Assistance
Comment. One commuter stated that the rule does not address the
status of ``Section 203'' preference class applicants, which, according
to the commenter, are categorized by the Department of State as
``spouses and children of legalization beneficiaries.''
HUD Response. Section 214 lists those categories of noncitizens
that are eligible for HUD housing assistance, and these categories are
repeated in the rule with elaboration, based on information provided by
INS. (See Section 214(a)). Section 200.182 and comparable sections
(Secs. 812.5, 905.310(a) and 912.5) provide that an eligible noncitizen
includes one who is lawfully present in the United States ``as a result
of being granted conditional entry under section 203(a)(7) of the
INA.''
Comment. Another commenter stated that the rule does not take into
account the transborder treaty agreements concerning Native Americans.
The commenter noted that under these treaty agreements, many Native
Americans have the right to cross freely into the United States and
have the legal right to reside and work in the United States.
HUD Response. Neither Section 214 nor these regulations interfere
with transborder treaty agreements concerning Native Americans.
Evidence of Eligible Status
Comment. Eight commenters stated that HUD exceeds its authority in
implementing regulations that require documentation and verification
from applicants. These commenters stated that the statute only imposes
documentation requirements on noncitizens who were residing in assisted
housing when the statute was enacted to document their ineligible
status.
HUD Response. HUD disagrees with the interpretation proposed by the
commenters. The statute refers to documentation requirements ``at the
time of application'' (see Section 214(d)(4)), and speaks in terms of
``denying'' assistance, not just ``terminating'' assistance (see
Section 214(d)(4)), which therefore indicate that the statute intended
to encompass applicants, and not just those families residing in HUD
public housing and assisted housing at the time of enactment of the
statute.
Comment. Eight commenters requested that the final rule require
U.S. citizens to provide documentation of eligibility, and that
citizenship status should be verified. Other commenters stated that a
declaration signed under penalty of perjury, as required by the August
25, 1994 proposed rule of U.S. citizens, is inadequate and is not a
realistic deterrent against fraud. Another commenter stated that the
declaration, to be signed by U.S. citizens, should require the
individual signing the declaration to identify his or her place of
birth, city, county and State. Another commenter requested that the
final rule require U.S. citizens to submit the same type of
documentation that is currently required of U.S. citizens under
employer verification requirements. Another commenter requested that
persons 62 years of age or older should be subject to same
documentation requirements as everyone else.
HUD Response. The Immigration Reform and Control Act of 1986 (IRCA)
(Pub. L. 99-603, approved November 6, 1986) amended Section 214 by
providing a procedure for the submission and verification of evidence
of citizenship or eligible immigration status. The amendment
specifically provides that U.S. citizens and nationals only need submit
a declaration in writing, signed under penalty of perjury (Section
214(d)). For individuals 62 years of age or older Section 214 requires
documentation if ``such an individual is not a citizen or national of
the United States, is not 62 years of age or older'' (Section
214(d)(2)). Accordingly, HUD interprets this language to provide that
individuals 62 years of age or older and receiving assistance on the
effective date of the final rule, like citizens or nationals, need only
submit a declaration in writing, and proof of age.
Comment. Two commenters stated HUD should disseminate standard and
model documents, such as a standard declaration form, and acceptable
INS forms.
HUD Response. In its guidance to be issued in connection with
implementation of the final rule, HUD intends to provide as much
information as possible to housing authorities and project owners,
including, where appropriate, model documents, and samples of standard
INS forms.
Documents in Languages Other Than English
Comment. Fifteen commenters stated that there is a substantial cost
involved with the requirement imposed on housing authorities and
project owners to provide documents in languages [[Page 14819]] other
than English to the extent ``feasible.'' Twelve commenters stated that
there will be disputes over ``what is feasible.'' Six commenters stated
that HUD should provide model notices in languages other than English.
Another commenter stated the issue providing notification in languages
other than English is not simply making documents available in other
languages, but in having interpreters to interview applicants, and ask
follow-up questions. Seven commenters stated that the translation of
documents into other languages should be a firm requirement and not
left to the owner's discretion.
HUD Response. The ``feasibility'' language in the rule is to assist
housing authorities to maintain the flexibility that they currently
have with respect to translating documents into languages other than
English, and to exercise judgment with respect to translating documents
into languages of a population group which they serve, of a substantial
number, and which speaks a language other than English. Many housing
authorities and project owners currently, without any requirement
imposed, translate documents into languages other than English.
Additionally, housing authorities and project owners may have staff in
their employ which speak languages other than English, and can assist
residents in understanding documents. Apart from the notices,
certifications, and documentation required by this rule, applying for
HUD public housing or HUD assisted housing involves reviewing and
completing documents which make reference to certain rights and
responsibilities; for example, the application form, the lease (which
will specify the rights of the tenant, as well as sanctions that may be
imposed against the tenant for violation of the lease) and other
documents which support the individual or family's eligibility for
assisted housing (i.e., documentation of income). It is HUD's
understanding that housing authorities and project owners currently
make efforts to assist residents with completion of these documents, if
not by providing translated documents, by allowing individuals the
opportunity and time to find a family member or friend who can assist
them with understanding and completing these documents, or in some
cases (as mentioned above), the housing authority may have in its
employ an individual who can provide such assistance.
As noted in discussion of other aspects of applying for and
residing in HUD public housing or assisted housing, HUD would like
housing authorities and project owners to utilize procedures already in
place with respect to implementation of this rule, to the extent
possible. For example, the rule provides for housing authorities and
project owners to verify immigration status at the same time other
aspects of eligibility are verified. Similarly, HUD would like housing
authorities and project owners to handle the documents required by this
rule, which are important, in the same manner that they handle other
important documents (again, the application, the lease, eviction
notices, etc.) that specify the rights and responsibilities of the
applicant or tenant. The ``feasibility'' language is to encourage
housing authorities and project owners to continue procedures already
in place to assist families whose first language is not English.
Accordingly, HUD declines to make the translation of documents into a
requirement, as suggested by some commenters.
When To Submit Evidence of Eligible Immigration Status
Comment. One commenter stated that submission of evidence of
citizenship or eligible immigration status should occur at each annual
recertification, and not simply one time during continuously assisted
occupancy, as the proposed rule provided. The commenter stated that INS
forms are by their very nature ``temporary'' in every case, and noted
that the proposed rule calls for only an initial proffer of documents
versus a yearly demonstration of eligibility.
HUD Response. The statute does not speak in terms of annual
verification, but only in terms of an initial documentation and
verification of tenants and applicants. Accordingly, HUD declines to
revise the proposed rule to impose an annual demonstration of
eligibility.
Comment. Two commenters stated that the final rule must clarify
when evidence is to be submitted by applicants. The commenters noted
that the August 25, 1994 proposed rule stated that evidence of eligible
status is submitted not later than the date the project owner
anticipates or has knowledge that verification or other aspects of
eligibility for assistance will occur.
HUD Response. The responsibility of housing authorities and project
owners is simply to ensure that this evidence is submitted by or within
a reasonable time within which verification of eligibility will take
place.
Extension of Time To Submit Evidence
Comment. Five commenters stated that the mandatory extensions of
time imposed by the rule will create an administrative burden for
authorities, owners, and managers.
HUD Response. The mandatory extensions of time are imposed by
statute. Section 214(d)(A) requires the Secretary of HUD to provide a
reasonable opportunity to submit evidence of eligible status if such
evidence is not submitted at the time of application or recertification
for financial assistance. Section 214(d) provides that ``for purposes
of this subsection, the term `Secretary' means the Secretary of Housing
and Urban Development, a public housing agency, or another entity that
determines the eligibility of an individual for financial assistance.''
Comment. Two commenters stated that the final rule should define
what is meant by a ``reasonable period of time.'' The commenters stated
that ``while we accept that the statute requires extensions of a
`reasonable period of time,' we are very concerned that without further
definition in the rule, there will be countless disputes over whether
the extension was sufficient.'' Two commenters stated that the rule
should require more than a self-certification that documentation is
temporarily unavailable. Three commenters stated that extensions of
time to submit evidence must be the exception, and not the norm.
HUD Response. HUD believes that extensions of time will be the
exception and not the norm, and that for those extensions requested,
the extensions, generally, will not exceed 30 days in duration.
However, HUD declines to establish by regulation what constitutes a
reasonable period of time, and prefers to allow housing authorities and
project owners the flexibility to determine what is reasonable given
the circumstances of the particular case for extension before them.
Limiting Acceptable Immigration Evidence to INS Documents
Comment. Four commenters stated that HUD's list of acceptable
documents is unnecessarily narrow and will cause hardship and
inconvenience to eligible persons. The commenters stated that the seven
categories listed in the statute can be documented through many more
INS-issued and non-INS-issued documents than are listed in the rule.
Four commenters stated that requiring two documents from those
individuals with certain I-94s is both unfair and unjustified. Four
commenters also stated that requiring that eligibility for the
replacement of the document be verified before the receipt can even be
submitted defeats the whole purpose of the rule's protections against
delay or [[Page 14820]] denial pending INS verification. Other
commenters provided suggestions of other types of evidence that HUD and
INS should determine as acceptable evidence of immigration status.
HUD Response. With respect to acceptable evidence of immigration
status, HUD follows the guidance and requirements issued by INS.
However, the final rule provides, as did the proposed rule, that other
acceptable documents as announced by INS will be announced by notice
published in the Federal Register.
Comment. One commenter stated that the list of documents of
eligible immigration status did not reflect a proper understanding of
INS procedures and of the Immigration Court's authority.
HUD Response. This list was prepared in consultation with the INS.
Again, as noted in the response to the preceding comment, any
additional acceptable evidence or any changes to the evidence listed in
this rule will be announced by notice in the Federal Register, and HUD
will make any conforming amendments, as may be necessary, at the
earliest possible opportunity.
Verification of Eligible Immigration Status
Comment. Several commenters objected to HUD's proposed use of the
SAVE system. The commenters stated that the SAVE system is ineffective,
inaccurate, and costly. The commenters suggested that HUD should not
use SAVE until it has been further tested. Other commenters encouraged
the Secretary of HUD to waive the verification requirements of IRCA.
Other commenters encouraged HUD to use, in lieu of SAVE, a verification
system modeled on the current employer verification system.
HUD Response. HUD declines to adopt the suggestions of the
commenters, and will proceed to use the SAVE system, as provided by
Section 214. HUD believes that since its implementation SAVE has
significantly improved, and is more effective and accurate than at the
time of its start-up.
When Verification Is To Occur
Comment. Two commenters requested that the final rule provide that
verification of immigration status occur at the time of application.
HUD Response. HUD declines to adopt the suggestion of the
commenters, and the final rule provides, as did the proposed rule, that
verification of immigration status should occur at the time that
verification of other aspects of eligibility for assistance occur.
No Delay, Denial or Termination of Assistance Pending Verification or
Appeals Process
Comment. Several commenters stated that applicants should not be
admitted to housing until final eligibility is determined.
HUD Response. The statute is very clear that ``pending verification
or appeal, the Secretary may not delay, deny, reduce or terminate the
individual's eligibility for financial assistance on the basis of the
individual's immigration status.'' (See Section 214(d)(4)).
Comment. Thirteen commenters stated that the final rule should make
clear that applicants who reach the top of the waiting list before INS
completes its verification must be offered housing even though eligible
status has not been established.
HUD Response. HUD believes that the final rule is clear on this
issue, and no additional language need be added to the rule.
Appeal to INS of Adverse Determination Concerning Immigration Status
Comment. Twenty commenters, representing individuals, housing
authorities and project owners, stated that the housing authority and
the project owner should be removed from the INS appeal process; that
this should be exclusively between the applicant/tenant and INS.
HUD Response. As noted earlier in this preamble, the final rule
provides for direct applicant/tenant participation in the INS appeal
process, and removes the housing authority or project owner as the
intermediary. The final rule, however, provides for the housing
authority and project owner to be copied on correspondence between INS
and the applicant/tenant.
Comment. One commenter stated that the proposed rule misinterpreted
the nature of immigration hearings and the authority of immigration
judges to bind the INS. The commenter stated that any decision by the
immigration court is final unless reversed on appeal by the Board of
Immigration Appeals. Another commenter stated that the rule needs to
clearly establish what an INS appeal is because the INS has no
regulations or procedures in place regarding appeal from secondary
verification.
HUD Response. In developing the proposed rule, and in developing
this final rule, HUD solicited and received the assistance of the INS,
and the rule reflects the input of INS. Although the INS regulations
found in title 8 of the Code of Federal Regulations do not specifically
reference appeal procedures applicable to the SAVE system, the INS
regulations have procedures in place to provide for further
determination of the accuracy of their records on noncitizens. (See 8
CFR part 103; see generally Secs. 103.20-103.36.
Informal Fair Hearing Process
Comment. Several commenters requested that the final rule eliminate
the hearing process to be provided by the housing authority or project
owner. The commenters questioned the purpose of the hearing. The
commenters stated that the project owner is not qualified to second
guess the entire INS process and determine that an otherwise ineligible
person or family is ineligible. Other commenters stated that HUD should
not adopt a procedure which carves out special rights for a particular
category of ineligible applicant.
HUD Response. The informal hearing process is mandated by statute.
Section 214 provides that ``if the Secretary determines, after
complying with the requirements of paragraph (4) (which addresses the
INS appeal process), that such an individual is not in a satisfactory
immigration status * * * the applicable fair hearing process shall be
made available with respect to the individual.'' (See Section
214(d)(4).)
Comment. Three commenters stated that with respect to the fair
hearing provided by the housing authority or the owner, the right to
discovery should be limited to those documents in the HA's possession.
HUD Response. In the matter of discovery, the HA or project owner
only would be required to produce documents in its possession.
Comment. Three commenters stated that the rule should require the
housing authority or project owner to incur the costs of any
interpretive services.
HUD Response. HUD declines to adopt the suggestion of the
commenter. HUD prefers to maintain the flexibility provided in the
proposed rule, which allows for the parties to agree on the arrangement
of interpretive services. HUD believes that in many cases, the
applicant or tenant will rely upon a family member, relative, or friend
to serve as the interpreter.
Preservation of Family (Mixed Family) Provisions
Mixed Families
Comment. A few commenters urged HUD to drop the ``preservation of
family'' provisions in the rule. The commenters stated that ineligible
persons should not be allowed to reside in an assisted unit.
HUD Response. The ``preservation of family'' provisions flow
directly from [[Page 14821]] the statute. Section 214(c) provides for
continued assistance and temporary deferral of termination of
assistance for mixed families.
Comment. Four commenters asked whether a mixed family may choose
temporary deferral of termination of assistance, and then select
prorated assistance at the end of the deferral period.
HUD Response. A family that receives temporary deferral of
termination of assistance bears a responsibility to make a good faith
effort to obtain other affordable housing, and the family's efforts are
monitored by the housing authority or project owner. If the family
makes such good faith efforts but is unsuccessful in obtaining other
affordable housing, the family shall be provided prorated assistance.
Continued Assistance
Comment. Several commenters objected to the restrictive definition
of ``family'' which determines eligibility for continued assistance.
The commenters stated that this definition unfairly penalizes a wide
range of families, and further stated that the requirement that the
head of household or spouse be a U.S. citizen is discriminatory.
HUD Response. The definition of ``family'' which determines
eligibility for continued assistance is taken directly from the
statute. Section 214(c)(1)(A), which addresses continued assistance,
provides that HUD may permit the continued provision of financial
assistance, if necessary to avoid the division of 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 any paragraphs (1) through (6) of subsection (a).
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.''
Comment. Four commenters stated that the rule should make clear
that housing authorities are not permitted to establish conditions for
continued assistance that are more burdensome than permitted by
statute. The commenters stated that this rule must set out in mandatory
language the circumstances under which continued assistance must be
granted.
HUD Response. The statute permits housing authorities the
discretion to grant continued assistance. This issue was discussed in
detail in the preamble to the proposed rule (see 59 FR 43913-43914).
The final rule provides (as did the proposed rule) the conditions under
which continued assistance may be granted by housing authorities (see
Secs. 812.11(c) and 912.11(c)).
Comment. One commenter requested that Sec. 200.187 be revised to
make clear that the requirements of this section, which address
continued assistance, are not tied to the date on which the regulations
become effective but rather continued assistance shall be determined as
of the date following completion of the applicable hearing process.
HUD Response. HUD believes that the commenter misunderstands the
reference to the ``effective date of the rule'' in this provision. This
section provides that a family that is eligible for continued
assistance must have been receiving assistance under a covered HUD
program as of the effective date of the rule. In other words, continued
assistance is not available to applicant families.
Deferral of Termination of Assistance
Comment. Five commenters requested that HUD remove the provision
concerning temporary deferral of termination of assistance on the basis
that this provision subjects owners and managers to legal liability.
The commenters stated that this provision requires owners and managers
to make a number of judgments (e.g., whether there is other affordable
housing in the market) that would subject them to legal liability.
Another commenter stated that this provision was discriminatory to
other categories of residents; that no other category of resident who
becomes ineligible for housing is protected from dislocation solely
because the resident has not located other affordable housing. Seven
commenters stated that the three year deferral period provided in the
rule is too long, and that the period should be limited to six months
or one year, at a maximum. The commenters stated that the three year
period would adversely impact eligible families on the waiting list.
Another commenter stated that the notification requirement imposed in
connection with deferral of termination of assistance is burdensome.
HUD Response. In allowing for a period of up to three years to
defer termination of assistance, HUD is adopting the language of
Section 214, which provides for an aggregate period of three years (see
Section 214(c)(1)(B)). Additionally, Section 214 requires that: ``At
the beginning of each deferral period, the public housing agency or
other entity involved shall inform the individual and family members of
their ineligibility for financial assistance and offer them other
assistance in finding other affordable housing.'' (See Section
214(c)(1)(B)). HUD believes that these ``preservation of family''
provisions reflect the concern of the Congress about displacement, or
immediate displacement of families, who but for their immigration
status, were eligible to reside in public housing or assisted housing,
and had not otherwise presented cause for eviction or termination of
assistance.
Comment. Fifteen commenters stated that the August 25, 1994
proposed rule imposes three conditions which must be met in order for a
family to be eligible for temporary deferral of termination of
assistance, and that families only should be required to meet one
standard.
HUD Response. For project owners, Sec. 200.187(c) of the final rule
requires, as did the proposed rule, that temporary deferral of
termination of assistance shall be granted to a mixed family if ``one
of the following conditions is met.'' This language is not adopted in
Secs. 812.10(c)(1), 905.310(r)(3) or 912.10(c)(1). Again, as discussed
in detail in the preamble to the proposed rule, the statute gives
directly to housing authorities the discretion to determine the
appropriateness of providing continued assistance or temporary deferral
of termination of assistance. Since this discretion is given directly
to housing authorities, HUD cannot preempt this discretion and impose
requirements on housing authorities. Accordingly, the ``temporary
deferral of termination'' provisions for housing authorities more
closely mirrors the language of the statute.
Comment. Two commenters stated that the final rule should impose
specific conditions on housing authorities for the granting temporary
deferral of termination of assistance, as it did for project owners.
HUD Response. As discussed in the preamble to the proposed rule (59
FR 43914), Section 214 permits HUD (in the case of project owners) or
the HA to defer termination of assistance in certain circumstances. For
project owners, the rule requires project owners to grant this type of
relief if a family meets certain qualifying conditions for HAs, the
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 this rule implementing Section
214.
Proration of Assistance
Comment. A number of commenters voiced their objection to proration
of assistance on the basis that this process [[Page 14822]] would be an
administrative nightmare. Several of these commenters advocated that in
order to eliminate this burden, full assistance should be provided to a
family when one or more members of the family have citizenship or
eligible immigration status One commenter stated that proration of
assistance was not supported by the language of Section 214. Another
commenter stated that despite limiting assistance to only eligible
family members, ineligible family members benefit from proration of
assistance. Three other commenters suggested that only ineligible
extended members of the family (and not core family members who have
ineligible extended members of the family (and not core family members
who have ineligible status) be counted as ineligible in determining
prorated assistance. Other commenters made suggestions concerning
alternative proration formulas, and one of these commenters suggested
that HUD accept each housing authority's calculation of the rent level
that would permit the housing authority to ``break even without the
benefit of Federal subsidies.''
HUD Response. HUD carefully considered all of the suggestions and
recommendations made by the commenters on the proration of assistance
provisions, and declines to make changes to the August 25, 1994
proposed rule at the final rule stage. Proration of assistance is
consistent with the preservation of Families provisions of Section 214,
which provide for continued assistance and temporary deferral of
termination of assistance. HUD believes that the proration formulas set
forth in the rule are workable, and HUD will make every effort to
assist housing authorities and project owners in making these formulas
more easily workable.
Comment. Another commenter requested clarification whether
providing proration of assistance is discretionary on the part of the
housing authorities.
HUD Response. The final rule clarifies that for both housing
authorities and project owners, proration of assistance must be offered
to eligible mixed families.
Comment. Four commenters asked for guidance for action to be taken
if the family is unable to pay prorated subsidy.
HUD Response. Housing authorities and project owners should utilize
the procedures currently in place when a family is unable to pay its
share of rent.
Comment. One commenter state that the prohibition against extension
of assistance to noncitizen students should not be extended to the
citizen children of the noncitizen student and noncitizen spouse.
HUD Response. The final rule provides, as did the proposed rule,
that 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. Section 214
provides that nonimmigrant student are not eligible for financial
assistance under the programs covered by Section 214. If the
nonimmigrant student and the noncitizen spouse of the student have
children born in the U.S., the citizenship status of the children would
not be sufficient in and of itself to make the family eligible for
prorated assistance because the fact remains that the family is in the
United States for the purpose of the education of the nonimmigrant
student, and not for the purpose of immigrating to the U.S. In other
words, Section 213 covered financial assistance is not available to
noncitizens who have not expressed an intention of immigrating to the
United States.
Protection of Individual's Privacy
Comment. Ten commenters stated that the proposed rule failed to
provide effective guards against the misuse of immigration status
information submitted by applicants and tenants, and that the final
rule should clarify that HAs, landlords and HUD officials cannot use
the information in their possession for any purpose other than
determining an individual's eligibility for housing assistance.
HUD Response. HUD agrees with the commenters and the final rule
clarifies that immigration status information provided to HAs,
landlords and HUD officials only may be used for purposes of
determining an individual's eligibility for housing assistance.
Nondiscrimination Provisions
Comment. One commenter requested that the final rule contain a
blanket hold-harmless provision to owners in the implementation of
Section 214.
HUD Response. HUD declines to adopt this recommendation.
Comment. Ten commenters stated that HUD must establish explicit
policies which prohibit and punish foreseeable discriminatory
applications of the noncitizens restrictions. The commenters stated
that the proposed rule merely recites general anti-discrimination laws
from related statutes. The commenters stated that housing authorities
should not be able to require different evidence of citizenship or
eligible immigration status based on foreign accents or non-English
sounding surnames.
HUD Response. HUD believes that the anti-discrimination statutes
and regulations currently in place are sufficient to address
discriminatory actions that may result in connection with
implementation of Section 214, and establishment of additional policies
and sanctions is not necessary. There is no need for HUD to impose
sanctions and penalties in addition to, or similar to those imposed by
the Fair Housing Act and Title VI of the Civil Rights Act. As discussed
at the beginning of this preamble, Section 214 is constructed in a way
that allows little discretionary action in its implementation. For
example, Section 214 is very specific with respect to documentation
requirements. Accordingly, if an individual signs a declaration under
penalty of perjury that he or she is a citizen, that is all the
documentation that is required under the statute and these regulations.
Administrative Burden/Unfunded Mandate
Comment. Although commenters acknowledged HUD's statement in the
August 25, 1994 proposed rule that the costs of automated verification
of immigration status through the SAVE system would be billed directly
to HUD, the majority of the commenters stated that implementation of
Section 214 imposes a substantial administrative burden, and HUD fails
to address reimbursement of all of the costs associated with
implementation of this statute, such as the various notification
requirements, document collection, hearings, record retention, and the
time and expense of training new staff in the new procedure for
verifying noncitizen status.
HUD Response. HUD acknowledges that there are additional
administrative responsibilities imposed by Section 214, and HUD has
made every effort to minimize the administrative burden through this
regulation. HUD will continue to make efforts to assist housing
authorities and project owners to carry out their responsibilities
through the guidance to be issued in connection with this final rule.
VI. Other Matters
Executive Order 12866. This final rule was reviewed by the Office
of Management and Budget under Executive Order 12866 as a significant
regulatory action. Any changes made in this 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
[[Page 14823]] 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) at the time of
development of the August 25, 1994 proposed rule. That Finding remains
applicable to this final rule, and 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 final
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 related to this
statutory requirement 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 hearing to determine eligibility on the
basis of immigration status will be minimal. Accordingly, HUD concludes
that this rule will not have a significant economic impact on a
substantial number of small entities, an that to the extent possible,
HUD has minimized the economic impact on all entities, consistent with
the Secretary's responsibilities under section 143a.
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 final
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 rule
addresses immigration, a topic exclusively the province of the Federal
government, and the effect is the direct result of the status 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 final 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
stature 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 final rule was listed as sequence number
1741 in the Department's Semiannual Agenda of Regulations published on
November 14, 1994 (59 FR 57632, 57644), under Executive Order 12866 and
the Regulatory Flexibility Act.
List of Subjects
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, 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
[[Page 14824]] 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, 880, 881, 882, 883, 884, 886, 887, 900,
904, 905, 912 and 960 are amended as follows.
PART 200--INTRODUCTION
1. The authority citation for part 200 is revised to read as
follows:
.Authority: 12 W.S.C. 1701-1715z-18; 42 U.S.C. 1436a and
3535(d).
2. A new subpart G, consisting of Secs. 200.180 through 200.192, is
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. 1715z) (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 W.S.C. 1715z-1) (tenants
paying below market rent only) (the Second 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 provide (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. [[Page 14825]]
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 nation 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 categories of eligible
immigration status specified in Section 214.
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 grant 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 three types of assistance
provided in Sec. 200.187. A family without any eligible members and
receiving assistance on June 19, 1995 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 content 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 June 19, 1995 the evidence consists of:
(i) A signed declaration of eligible immigration status; and
(ii) Proof of age document. [[Page 14826]]
(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 who contends that he or
she is a U.S. citizen or a noncitizen with eligible immigration status,
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; and
(ii) The INS for purposes of verification of the immigration status
of the individual.
(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 future 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 assistance under Secs. 200.187 or 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, however,
must 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. The notification described in paragraph
(f)(1) of this section be given to each applicant at the time of
application for assistance. Applicants whose applications are pending
on June 19, 1995 shall be notified of the requirement to submit
evidence of eligible status as soon as possible after June 19, 1995.
(ii) Tenant's notice. The notification described in paragraph
(f)(1) of this section 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 June 19, 1995.
(iii) Timing of mortgagor's notice. A mortgagor receiving Section
235 assistance must be provided the notification described in paragraph
(f)(1) of this section in accordance with Sec. 235.13(b)(2) of this
chapter.
(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 June 19, 1995, 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 June 19, 1995.
(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: [[Page 14827]]
(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
effort 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 by
the INS to constitute acceptable evidence of eligible immigration
status, they will be announced by 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), or such other form specified by the INS 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
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
[[Page 14828]] 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;
(iv) The INS appeals process under Sec. 200.186(e) has not been
concluded; or
(v) 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 second verification does not
verify eligible immigration status of a family member; and
(A) The family does not pursue INS appeal or informal hearing
rights as provided in this section; or
(B) 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. Upon receipt of notification by the project owner that INS
secondary verification failed to confirm eligible immigration status,
the project owner shall notify the family of the results of the INS
verification, and the family shall have 30 days from the date of the
project owner's notification, to request an appeal of the INS results.
The request for appeal shall be made by the family communicating that
request in writing directly to the INS. The family must provide the
project owner with a copy of the written request for appeal and proof
of mailing. For good cause shown, the project owner shall grant the
family an extension of the time within which to request an appeal.
(2) Documentation to be submitted as part of appeal to INS. The
family shall forward to the designated INS office any additional
documentation or written explanation 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) or
such other form specified by the INS, and a cover letter indicating
that the family is request an appeal of the INS immigration status
verification results. (Form G-845S is available from the local INS
Office.)
(3) Decision by INS.--(i) When decision will be issued. The INS
will issue to the family, with a copy 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 family and project owner of the reasons for the
delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the project owner receives a copy of the INS decision,
the project owner shall notify the family of its right to request an
informal hearing on the PHA's ineligibility determination in accordance
with the procedures of paragraph (f) of this section.
(4) 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 [[Page 14829]] 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 paragraph (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 June 19, 1995, and following completion of
the appeals and informal hearing procedures provided in Sec. 200.186 if
utilized by the family, one of the following three types of assistance
is available to the family depending upon the family's eligibility for
such assistance:
(i) Continued assistance (see paragraph (b) of this section);
(ii) Temporary deferral of termination of assistance (see paragraph
(c) of this section); or
(iii) Prorated assistance (see Sec. 200.188; a mixed family must be
provided prorated assistance if the family so requests).
(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 June 19, 1995 and who have no members with eligible immigration
status, temporary deferral of termination of assistance is available to
families without any eligible members in accordance with paragraph (c)
of this section.
(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 June 19, 1995;
(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 owners 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
[[Page 14830]] 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 consolidated plan, 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 that one of the three conditions specified
in paragraph (c)(2) of this section continues to be met (note:
affordable housing will be determined to be available if the vacancy
rate is five percent or greater, or if the consolidated plan (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) Option to select proration of assistance at end of deferral
period. A family who is eligible for, and receives temporary deferral
of termination of assistance, may request, and the project owner shall
provide proration of assistance at the end of the deferral period if
the family has made a good faith effort during the deferral period to
locate other affordable housing.
(e) 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 who is eligible for and requests and receives
temporary deferral of termination of assistance 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 [[Page 14831]] 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) and the implementing
regulations in 24 CFR part 1, section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and the implementing regulations in 24 CFR part 8,
the Fair Housing Act (42 U.S.C. 3601-3619) and the implementing
regulations in 24 CFR part 100, 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 rule 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 continues to read as
follows:
Authority: 12 U.S.C. 1701s; 42 U.S.C. 3535(d).
4. In Sec. 215.20, paragraph (b)(2) is 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) is 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. A new Sec. 215.26 is added to read as follows:
Sec. 215.26 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, 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.
7. Section 215.55 is 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 June 19, 1995,
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 June 19, 1995 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) * * * 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. [[Page 14832]]
PART 235--MORTGAGE INSURANCE AND ASSISTANCE PAYMENTS FOR HOME
OWNERSHIP AND PROJECT REHABILITATION
8. The authority citation for part 235 continues to read as
follows:
Authority: 12 U.S.C. 1715b and 1715z; 42 U.S.C. 3535(d).
9. Section 235.2 is 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 is 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 June 19, 1995
and remains unchanged after that date. (See Sec. 235.13(c).)
* * * * *
11. A new Sec. 235.13 is 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 June 19, 1995
and remain unchanged after that date; or
(2) Who refinance their Section 235 mortgages, which were executed
before June 19, 1995 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 June 19,
1995, 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
June 19, 1995 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 June 19, 1995.
(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 June 19, 1995, 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 June 19,
1995 and remain unchanged after that date, or to mortgagors who
refinance their section 235 mortgages, which were executed before June
19, 1995 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 (d)(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 [[Page 14833]] unless
the mortgagee has made the certification required under paragraph (d)
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) is 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 is 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 235.13(a) (1) or
(2)).
* * * * *
14. In Sec. 235.375, a new paragraph (b)(6) is 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 continues to read as
follows:
Authority: 12 U.S.C. 1715b and 1715z-1; 42 U.S.C. 3535(d).
16. Section 236.2 is amended by:
1. Amending the definition of ``Adjusted income'' by redesignating
paragraphs (a), (b), (c), (d) introductory text, (d)(1), (d)(2),
(d)(3), and (e), as paragraphs (1), (2), (3), (4) introductory text,
(4)(i), (4)(ii), (4)(iii), and (5), respectively, and by removing the
cross-reference in newly designated paragraph (4)(ii) that reads
``paragraph (c) of this section'' and adding in its place ``paragraph
(3) of this definition'';
2. Amending the definition of ``Handicapped Person'' by
redesignating paragraphs (a), (b), and (c) to read paragraphs (1), (2),
and (3), respectively;
3. Amending the definition of ``Live-in aide'' by redesignating
paragraphs (a), (b), and (c), to read paragraphs (1), (2), and (3),
respectively; and
4. Amending the definition of ``Qualified Tenant'' by redesignating
paragraphs (a) and (b) as paragraphs (1) and (2) respectively, and by
adding a new paragraph (3), to read as follows:
Sec. 236.2 Definitions.
* * * * *
Qualified Tenant
* * * * *
(3) 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) is 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 is 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 June 19, 1995,
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 June 19, 1995 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 any
new family member.
(c) * * * Assistance also may be terminated in accordance with any
requirements of the lease 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. Section 236.710 is amended by adding a new sentence 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) is 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 is added to subpart D to 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. [[Page 14834]]
(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 continues to read as
follows:
Authority: 12 U.S.C. 1701q, 1701s, 1715b, 1715l, and 1715z-1; 42
U.S.C. 1437a, 1437c, 1437f, and 3535(d).
23. In Sec. 247.3, paragraph (c)(3) is 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 is revised to read as
follows:
Authority: 42 U.S.C. 1436a, 1437a, and 3535(d).
25. In Sec. 812.1, paragraph (a) is 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 is 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 categories of eligible immigration status specified in
Section 214.
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).
* * * * *
27. Part 812 is 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. [[Page 14835]] 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 June 19, 1995 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 June 19, 1995, 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 who contends that he or she
is a U.S. citizen or a noncitizen with eligible immigration status, 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; and
(ii) The INS for purposes of verification of the immigration status
of the individual.
(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 assistance under Secs. 812.10 or 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,
however, must 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 provided by paragraph (e) of this section, shall be
[[Page 14836]] given by the responsible entity as follows:
(i) Applicant's notice. The notification described in paragraph
(f)(1) of this section shall be given to each applicant at the time of
application for financial assistance. Families whose applications are
pending on June 19, 1995, shall be notified of the requirements to
submit evidence of eligible status as soon as possible after June 19,
1995.
(ii) Notice to families already receiving assistance. For a family
in occupancy on June 19, 1995, the notification described in paragraph
(f)(1) of this section 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
June 19, 1995.
(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 June 19,
1995, the required evidence shall be submitted at the first regular
reexamination after June 19, 1995, 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 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 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 when 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) Acceptance 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 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
[[Page 14837]] 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 by
the INS to constitute acceptable evidence of eligible immigration
status, they will be announced by 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 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), or such other form
specified by the INS, 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) Restriction 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
(i) The family does not pursue INS appeal or informal hearing
rights as provided in this section; or
(ii) 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) of 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. Upon
receipt of notification by the responsible entity that INS secondary
verification failed to confirm eligible immigration status, the
responsible entity shall notify the family [[Page 14838]] of the
results of the INS verification, and the family shall have 30 days from
the date of the responsible entity's notification to request an appeal
of the INS results. The request for appeal shall be made by the family
communicating that request in writing directly to the INS. The family
must provide the responsible entity with a copy of the written request
for appeal and proof of mailing. For good cause shown, the responsible
entity shall grant the family an extension of the time within which to
request an appeal.
(2) Documentation to be submitted as part of the appeal to INS. The
family shall forward to the designated INS office any additional
documentation or written explanation 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) or
such other form specified by the INS, 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.)
(3) Decision by INS (i) When decision will be issued. The INS will
issue to the family, with a copy 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 family and the responsible entity of the
reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the responsible entity receives a copy of the INS
decision, the responsible entity shall notify the family of its right
to request an informal hearing on the responsible entity's
ineligibility determination in accordance with the procedures of
paragraph (f) of this section.
(4) 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 paragraph (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 with
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 [[Page 14839]] 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 June 19, 1995, and following
completion of the appeals and informal hearing procedures provided in
Sec. 812.9 if utilized by the family, one of the following three types
of assistance may be available to the family:
(i) Continued assistance (see paragraph (c) of this section);
(ii) Temporary deferral of termination of assistance (see paragraph
(d) of this section); or
(iii) Prorated assistance (see Sec. 812.11; a mixed family must be
provided prorated assistance if the family so requests).
(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
June 19, 1995 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 certain 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 two statutory
forms of assistance for preservation of the family (continued
assistance or temporary deferral of termination of assistance). HUD is
exercising its discretion by specifying the standards in this section
under which a project owner must provide one of these two types of
assistance described in paragraph (a) of this section to a family.
However, project owners and housing authorities must offer prorated
assistance to eligible mixed families.
(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 the two
statutory forms of assistance (continued assistance or temporary
deferral of termination 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. However, the housing authority must offer prorated assistance
to eligible mixed families.
(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 June 19, 1995;
(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 consolidated plan (if
applicable, as 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) Option to select proration of assistance at end of deferral
period. A family who is eligible for and who receives temporary
deferral of termination of assistance, may request, and the project
owner or housing [[Page 14840]] authority shall provide proration of
assistance at the end of the deferral period if the family has made a
good faith effort during the deferral period to locate other affordable
housing.
(f) 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 or 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 extent 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) and the implementing
regulations in 24 CFR part 1, section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and the implementing regulations in 24 CFR part 8,
the Fair Housing Act (42 U.S.C. 3601-3619) and the implementing
regulations in 24 CFR part 100, 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 [[Page 14841]]
(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 continues to read as
follows:
Authority: 42 U.S.C. 1437o and 3535(d).
29. Section 850.151 is amended 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 June 19, 1995
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 continues 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) is 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 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 simply 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) is 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 is amended by revising the introductory text in
paragraph (b), by adding a sentence at the end of paragraph (b)(2), by
adding a sentence 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
selection preferences in accordance with Secs. 880.613 through 880.617.
* * * * *
(2) * * * 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 June 19, 1995,
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
[[Page 14842]] 812 and verify the immigration status of any new family
member.
(2) * * * At any interim reexamination after June 19, 1995 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 is amended by redesignating the first sentence
following the paragraph heading in the introductory text of 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 continues 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) is 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) is 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 24 CFR 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 is 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 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
parts 750 and 760 of chapter VII, and to select families for admission
to the program, which includes giving selection preferences in
accordance with Secs. 881.613 through 881.617.
* * * * *
(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 June 19, 1995,
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 June 19, 1995 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
[[Page 14843]] 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) is
revised, and a new paragraph (c)(4) is added, to read as follows:
Sec. 881.607 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
provided 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 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d) and 11401.
41. In Sec. 882.116, paragraph (c) is 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) is 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) is 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) is 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 is 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 June 19, 1995,
the PHA shall follow the requirements of 24 CFR part 812 concerning
obtaining and processing evidence of citizenship of 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 June 19, 1995 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 is 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 [[Page 14844]] basis of ineligible immigration status
are contained in 24 CFR 812.9.
* * * * *
47. In Sec. 882.514, paragraph (f) is amended by adding one
sentence at the end of the paragraph, 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 is 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 June 19, 1995,
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 June 19, 1995 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 is amended by adding two sentences at the end
of paragraph (i)(1), one sentence at the end of paragraphs (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 June 19, 1995,
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 June 19, 1995 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.
* * * * *
(1) * * * 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 continues 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) is 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) is 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) are
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 is 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) * * * [[Page 14845]]
(1) * * * At the first regular reexamination after June 19, 1995,
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 June 19, 1995 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 * * *'' is revised, and a new paragraph
(c)(4) is 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 continues 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) is 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 preference 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 Sec. 884.214, paragraph (b)(1) is revised and a new
paragraph (b)(8) is 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 procedure 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 requirements, see 24 CFR 812.9, and
also 24 CFR 812.10 for provisions concerning 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 is amended by adding two sentences at the end
of paragraph (a), and 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 June 19, 1995,
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 June 19, 1995 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. [[Page 14846]]
60. In Sec. 884.223, a new paragraph (e) is 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 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
62. In Sec. 886.119, the section heading and paragraph (a)(3) are
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) is revised and a new paragraph
(c) is added, to read as follows:
Sec. 886.121 Marketing.
* * * * *
(b) The Owner shall comply with the applicable provisions of the
Contract, this subpart A, 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 is amended by adding two sentences at the end
of paragraph (a), and 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 June 19, 1995,
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 June 19, 1995, 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 is 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) is 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) is 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)
are revised and a new paragraph (b)(7) is 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
[[Page 14847]] 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 among 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 is amended by adding two sentences at the end
of paragraph (a), and one sentence at the end of paragraph (b) and (c),
to read as follows:
Sec. 886.324 Reexamination of family income and composition.
(a) * * * At the first regular reexamination after June 19, 1995,
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 June 19, 1995 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 is 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) is 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 is revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, and 3535(d).
73. In Sec. 887.105, paragraph (b)(5) is 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) is redesignated as paragraph
(c), and a new paragraph (b) is added, to read as follows:
Sec. 887.355 Regular reexamination of family income and composition.
* * * * *
(b) At the first regular reexamination after June 19, 1995, 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 is 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 June 19, 1995 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), introductory text, and
paragraph (a)(1) are 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) are redesignated as
paragraphs (e) [[Page 14848]] and (f), and a new paragraph (d) is
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 is 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 continues 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) is 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 is 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 is 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) are 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 information 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) are 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
[[Page 14849]] 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 continues 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 is 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 categories of eligible immigration status specified in
Section 214.
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).
* * * * *
87. Section 905.310 is 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 [[Page 14850]] 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 June 19, 1995
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
June 19, 1995 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 June 19, 1995, 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 who contends that he or she
is a U.S. citizen or a noncitizen with eligible immigration status, 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; and
(B) The INS for purposes of verification of the immigration status
of the individual.
(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 assistance under paragraphs (r) or (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, however, must 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 provided by paragraph (f) of this section, shall be given by
the IHA as follows:
(i) Applicant's notice. The notification described in paragraph
(g)(1) of this section shall be given to each applicant at the time of
application for financial assistance. Families whose applications are
pending on June 19, 1995 shall be notified of the requirements to
submit evidence of eligible status as soon as possible after June 19,
1995.
(ii) Notice to families already receiving assistance. For a family
in occupancy on June 19, 1995, the notification described in paragraph
(g)(1) of this section shall be given to each at the time of, and
together with, the IHA's notice of the regular reexamination after that
date, but no later than one year following June 19, 1995.
(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
(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 June 19,
1995, the [[Page 14851]] required evidence shall be submitted at the
first regular reexamination after June 19, 1995, 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 only 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 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 by the INS to constitute
acceptable evidence of eligible immigration status, they will be
announced by 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), or such other form
specified by the INS, to a designated INS office for review. (Form G-
845S is available from the local INS Office.)
(iii) Failure of secondary verification to conform eligible
immigration status. If the secondary verification does not confirm
eligible immigration status, the IHA shall issue to the family the
notice [[Page 14852]] 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
(A) 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
(B) 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) The 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) of 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. Upon
receipt of notification by the IHA that INS secondary verification
failed to confirm eligible immigration status, the IHA shall notify the
family of the results of the INS verification, and the family shall
have 30 days from the date of the IHA's notification, to request an
appeal of the INS results. The request for appeal shall be made by the
family communicating that request in writing directly to the INS. The
family must provide the IHA with a copy of the written request for
appeal and proof of mailing. For good cause shown, the IHA shall grant
the family an extension of time within which to request an appeal.
(2) Documentation to be submitted as part of appeal to INS. The
family shall forward to the designated INS office any additional
documentation or written explanation 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) or
such other form specified by the INS, 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.)
(3) Decision by INS--(i) When decision will be issued. The INS will
issue to the family, with a copy 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 family and the IHA of the reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the IHA receives a copy of the INS decision, the IHA
shall notify the family of its right to request an informal hearing on
the IHA's ineligibility determination in accordance with the procedures
of paragraph (o) of this section.
(4) 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: [[Page 14853]]
(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 June 19, 1995, and following the appeals and
informal hearing procedures provided in paragraphs (n) and (o) of this
section if utilized by the family, 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) Temporary deferral of termination of assistance (see paragraph
(r)(3) of this section); or
(C) Prorated assistance (see paragraph (s) of this section; a mixed
family must be provided prorated assistance if the family so requests).
(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
June 19, 1995 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 June 19, 1995;
(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 consolidated plan (if
applicable, as 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, [[Page 14854]] 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) Option to select proration of assistance at end of deferral
period. A family who is eligible for, and receives temporary deferral
of termination of assistance, may request, and the IHA shall provide,
proration of assistance at the end of the deferral period if the family
has made a good faith effort during the deferral period to locate other
affordable housing.
(vi) 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 who is eligible for and requests temporary deferral of
termination of assistance under paragraph (r)(3) of this section. The
IHA must provide an eligible mixed family prorated assistance if the
family request prorated assistance.
(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 is 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 [[Page 14855]] occupancy, and, for tenants admitted
before June 19, 1995, 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 is revised to read as
follows:
Authority: 42 U.S.C. 1436a, 1437a, and 3535(d).
90. Section 912.1 is 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 is amended by adding 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 categories of eligible immigration status specified in
Section 214.
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 is 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 [[Page 14856]] 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 June 19, 1995 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 June 19, 1995, 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 who contend that he or she
is a U.S. citizen or a noncitizen with eligible immigration status, 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 is required by HUD; and
(ii) The INS for purposes of verification of the immigration status
of the individual.
(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 assistance under Secs. 912.10 or 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,
however, must 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 provided by paragraph (e) of this section, shall be given by
the PHA as follows:
(i) Applicant's notice. The notification described in paragraph
(f)(1) of this section shall be given to each applicant at the time of
application for financial assistance. Families whose applications are
pending on June 19, 1995 shall be notified of the requirements to
submit evidence of eligible status as soon as possible after June 19,
1995.
(ii) Notice to families already receiving assistance. For a family
in occupancy on June 19, 1995, the notification described in paragraph
(f)(1) of this section 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 June 19, 1995.
(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. 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
[[Page 14857]] 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 June 19,
1995, the required evidence shall be submitted at the first regular
reexamination after June 19, 1995, 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 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 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 is filed before
October 1, 1990);
(iii) A court decision granting withholding of deportation; or
(iv) A letter from an INS asylum officer granting withholding of
deportation (if application is 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 by
the INS to constitute acceptable evidence of eligible immigration
status, they will be announced by 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 [[Page 14858]] Sec. 912.7 (front and back),
attached to the INS document verification request form G-845S (Document
Verification Request), or such other form specified by the INS, 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 of 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 second verification does not
verify eligible immigration status of a family member; and
(i) The family does not pursue INS appeal or PHA informal hearing
rights as provided in this section; or
(ii) 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. Upon
receipt of notification by the PHA that INS secondary verification
failed to confirm eligible immigration status, the PHA shall notify the
family of the results of the INS verification, and the family shall
have 30 days from the date of the project owner's notification to
request an appeal of the INS results. The request for appeal shall be
made by the family communicating that request in writing directly to
the INS. The family must provide the PHA with a copy of the written
request for appeal and proof of mailing. For good cause shown, the PHA
shall grant the family an extension of time within which to request an
appeal.
(2) Documentation to be submitted as part of appeal to INS. The
family shall forward to the designated INS office any additional
documentation or written explanation 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) or
such other form specified by the INS, and a cover letter indicating
that the family is requesting an appeal of the INS immigration status
verification results.
(3) Decision by INS.--(i) When decision will be issued. The INS
will issue to the family, with a copy 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 family and the PHA of the reasons for the delay.
(ii) Notification of INS decision and of informal hearing
procedures. When the PHA receives a copy of the INS decision, the PHA
shall notify the family of its right to request an informal hearing on
the PHA's ineligibility determination in accordance with the procedures
of paragraph (f) of this section.
(4) 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). [[Page 14859]]
(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 June 19, 1995, and following
completion of the appeals and informal hearing procedures provided in
Sec. 912.9 if utilized by the family, one of the following three types
of assistance may be available to the family:
(i) Continued assistance (see paragraph (b) of this section);
(ii) Temporary deferral of termination of assistance (see paragraph
(c) of this section); or
(iii) Prorated assistance (see Sec. 912.11; a mixed family must be
provided prorated assistance if the family so requests); or
(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 June 19, 1995 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 June 19, 1995;
(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 for affordable housing
for the area in which the project is located, the consolidated plan (if
applicable, as [[Page 14860]] described in 24 CFR part 91), 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) Option to select proration of assistance at end of deferral
period. A family who is eligible for, and receives temporary deferral
of termination of assistance, may request, and the PHA shall provide,
proration of assistance at the end of the deferral period if the family
has made a good faith effort during the deferral period to locate other
affordable housing.
(e) 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 who is eligible for and requests and receives
temporary deferral of termination of assistance under Sec. 912.10(c).
An eligible mixed family who requests prorated assistance, must be
provided prorated assistance.
(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) and the implementing regulations of 24 CFR
part 1, section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and the implementing regulations of 24 CFR part 8, the Fair Housing Act
(42 U.S.C. 3601-3619) and the implementing regulations of 24 CFR part
100, 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
[[Page 14861]] 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 is 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) are 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) is 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 is 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 June 19, 1995,
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 June 19, 1995 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 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: March 8, 1995.
Henry G. Cisneros,
Secretary.
[FR Doc. 95-6358 Filed 3-14-95; 8:45 am]
BILLING CODE 4210-32-P