CHAPTER 3. APPLICABILITY TO PERSONS

3-1. Restrictions On Assistance To Noncitizens. Housing assistance that
is

provided under a Section 214 covered progran is restricted to the

following individuals: \[\'\'812.5(a)(1); 950.310(b)(1); 912.5(a)(1)\]

a\. Citizens, including nationals; or

b\. Noncitizens who have eligible immigration status in one of the

following categories:

\(1\) A noncitizen who has been lawfully admitted to the U.S. 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 21101(a)(15), respectively (immigrants). This category

includes a noncitizen who has been admitted under Section 210

or 210A of the INA (8 U.S.C. 1160 or 1161), (special

agricultural worker), and who has been granted lawful

temporary resident status;

\(2\) A noncitizen who entered the U.S. before January 1, 1972, or

such later date as enacted by law, and who has continuously

maintained residence in the U.S. 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);

\(3\) A noncitizen who is lawfully present in the U.S. 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 (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;

\(4\) A noncitizen who is lawfully present in the U.S. as a result

of an exercise of discretion by the Attorney General for

emergent reasons or for reasons deemed strictly in the public

interest under Section 212(d)(5) of the INA (8 U.S.C.

1182(d)(5)) (parole status);

\(5\) A noncitizen who is lawfully present in the U.S. 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

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\(6\) 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).

3-2. Family Eligibility For Assistance. A family shall not be eligible
for

assistance unless every member of the family residing in the unit is

determined to have eligible immigration status, as described in

paragraph 3-1. \[\'\'812.5(b); 950.310(c); 912..5(b)\]

a\. Exception for Mixed Families. 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 Section 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 paragraph 1-5.

b\. Exemption of certain homebuyers from restrictions of this paragraph

(Indian housing only). 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. \[950.310(d)\]

3-3. Preference Versus Eligibility Criteria For Admission. Preferences
and

eligibility criteria for admission to HUD-assisted housing are two

different matters. Citizenship or eligible immigration status should be

considered to be an eligibility factor. Applicant families (including

eligible individuals or single persons) must first meet the eligibility

requirements for HUD-assisted housing, and then, local/Federal

preferences are applied to eligible families. Where the waiting period

for admission is likely to be lengthy, an HA should not undertake to

conduct the Section 214 investigation until it undertakes the

determination of eligibility for all criteria, including citizenship or

eligible immigration status.

3-4. HA Tenant Selection Policies. In addition to policies and
regulations

including preferences and priorities established by the HA for

eligibility and admission, each HA shall adopt and implement policies

and procedures embodying standards and criteria providing for

verification and documentation of information relevant to acceptance or

rejection of an applicant, including documentation and verification of

\* citizenship and eligible immigration status.1/ Information relative
to\*

the acceptance or rejection of an applicant or tenant must be documented

and placed in the applicant\'s or tenant\'s file. All procedures must be

applied consistently to every tenant or applicant, as applicable.

1/Under the Section 8 regulations (see 24 CFR \'982.54), ONLY the
policies

and procedures where the HA has discretion to establish local policy are

stated in the administrative plan and HUD does not approve these
policies.

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3-5.Persons Covered. The Section 214 requirements apply to:

a.All applicants who request housing assistance,

b.All applicants who are already on a waiting list for housing

assistance, and

c.All tenants who are already receiving housing assistance under a

Section 214 covered program.

3-6.Prohibition Of Assistance To Noncitizen Students. \[812.12;
950.310(t);912.12\]

a.General. The provisions of paragraph 10-5 and Chapter 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 described in paragraph 3-5b, or the family of the noncitizen

student, as defined in paragraph 3-5c.

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

noncitizen 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 3-5a

also extends to the noncitizen spouse of the noncitizen student and

noncitizen 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. Children born to a U.S. citizen spouse are U.S. citizens

by birth. It should be noted that such children may also have dual-

citizenship based on the other parent\'s non-U.S. citizenship.

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3-7.Procedures When Fraud Is Suspected With Respect To A Declaration of

Citizenship.

a.\"Reason To Suspect\" Provision. The proposed rule issued in 1988

authorized an HA to initiate termination procedures whenever it

obtained evidence of conflicting or inconsistent information

regarding an individual\'s identity or claimed U.S. citizenship

status. However, the proposed rule issued on August 25, 1994,

removed this provision. As a result, any false statement or

fraudulent evidence concerning eligibility on the basis of eligible

citizenship or immigration status should be handled by the HA in

the same manner that the HA addresses other false statements or

fraudulent evidence with respect to other aspects of eligibility.

To the extent possible, eligible citizenship or immigration status

should be treated the same as other factors that are taken into

consideration in determining a person\'s eligibility for assistance

or continued assistance. Except where mandated by statute (i.e.,

notice requirements, verification procedures, hearing requirements,

special relief provisions), the 1994 proposed rule directed the HA

to rely on existing procedures that are in place and applicable to

other eligibility factors. \[See 59 FR 43907 for complete

discussion.\]

b.Rectifying improper or inaccurate eligibility determinations. If an

HA receives information that provides a substantial basis to

believe that a tenant may have erroneously or deliberately

misrepresented his or her eligibility and is receiving financial

assistance for which he or she (or the family) may not be eligible,

the HA should take the steps indicated below. These further the

policy of HUD as set forth in the preamble of the 1994 proposed

rule at 59 FR 43900, 43907 to treat eligible citizenship or

eligible immigration status in the same manner as other factors

involving an individual\'s eligibility.

It is imperative, however, that the information be concrete, rather

than just the HA\'s suspicion. For example, a tenant declares

himself or herself as a citizen, but also provides an Alien

Registration Number or a third party comes forward with concrete

information (not just hearsay). In this event the HA should:

(1)Present the tenant with the tenant\'s and any conflicting

information; obtain additional information from other persons

or agencies; or take other actions to verify either the

tenant\'s information or the conflicting information.

(2)If the HA\'s efforts outlined in paragraph 3.8b(1) above

conclude that the tenant supplied incorrect information, the

owner must document his or her findings in writing. The tenant

must then be notified in writing of the error, identifying

what information is believed to be incorrect. In addition, the

tenant must be provided an opportunity, within 10 calendar

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days, to meet with the HA and discuss the allegation(s). The

HA must inform the tenant that failure to do so may result in

the termination of the tenant\'s assistance or tenancy. The

meeting with the HA shall be with a designated representative

of the HA who has not been involved in any manner with the

review of the allegedly false information.

(3)If the tenant responds and convinces the HA that his or her

submissions were correct, the HA should document the record

accordingly, and close the investigation. Rental assistance

payments continue to be made at the amount set at

certification or recertification, and there is no adjustment

to the tenant\'s rent.

If, however, the HA determines that there is adequate basis

for further investigation, the HA should require the tenant to

submit whatever documentation is necessary to resolve the

issue; e.g., if the tenant declared as a citizen, he or she

should submit a birth certificate or any other official

document that evidences citizenship status.

If the tenant chooses to provide a new declaration as an

eligible noncitizen, the HA should have the tenant complete a

verification consent form (see Appendix C) and submit the

required evidence. The HA can then conduct a primary

verification and, if necessary, forward that information to

INS for secondary verification. At the end of the verification

process, if the tenant still is found ineligible, or if the

tenant elects not to contend eligible status, the HA should

take the appropriate actin to adjust the rent, terminate the

assistance or terminate the tenancy.

3-8.Liability Of Ineligible Families For Reimbursement Of Benefits \--

Section 8 Programs Only. 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).

\[812.15\]

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