14816 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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.

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 selfimplementing 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14817

1A 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).

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

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 grandfatherin 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 HUDassisted 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.
14818 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 § 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

§§ 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 (§§ 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 selfcertification 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
14820 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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

§§ 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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

§§ 812.11(c) and 912.11(c)).

Comment. One commenter requested

that § 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,

§ 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

§§ 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
14822 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 antidiscrimination 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 nonEnglish 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 wellbeing 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
14824 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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

§§ 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

§ 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 § 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 § 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 § 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 § 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 § 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.
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14825

§ 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.)

§ 200.181 Definitions.

Assisted dwelling unit means a

dwelling unit for which financial

assistance is considered to be paid, as

determined in accordance with

§ 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 § 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 § 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.

§ 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 § 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 § 200.187.

§ 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 § 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.
14826 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

(3) For all other noncitizens, the

evidence consists of:

(i) A signed declaration of eligible

immigration status;

(ii) The INS documents listed in

§ 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 §§ 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

§ 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 § 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 § 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

§ 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

§§ 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 § 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:
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14827

(i) Submits the declaration required

under § 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 §§ 200.186 and

200.187.

§ 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

§ 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.

§ 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 § 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 § 200.186(d),

which includes notification of appeal to

the INS of the INS finding on

immigration status (see § 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.

§ 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
14828 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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

§ 200.186(e) has not been concluded; or

(v) For a tenant, the informal hearing

process under § 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 § 200.188;

(ii) Assistance for a mixed family is

continued in accordance with § 200.187;

or

(iii) Deferral of termination of

assistance is granted in accordance with

§ 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 § 200.183(g) or by the

expiration of any extension granted in

accordance with § 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 § 200.188;

(3) In the case of a tenant, the criteria

and procedures for obtaining relief

under the preservation of families

provision in § 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 crossexamine 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.

§ 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

§ 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 § 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

§ 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 § 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
14830 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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.

§ 200.188 Proration of assistance.

(a) Applicability. This section applies

to a mixed family other than a family

receiving continued assistance under

§ 200.187(b), or other than a family who

is eligible for and requests and receives

temporary deferral of termination of

assistance under § 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.

§ 200.189 Prohibition of assistance to

noncitizen students.

(a) General. The provisions of

§§ 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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.

§ 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.

§ 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

§ 200.185.

(2) Because the project owner was

required to provide an opportunity for

the family to submit evidence in

accordance with § 200.183;

(3) Because the project owner was

required to wait for completion of INS

verification of immigration status in

accordance with § 200.185;

(4) Because the project owner was

required to wait for completion of the

INS appeal process provided in

accordance with § 200.186(e); or

(5) Because the project owner was

required to provide an informal hearing

in accordance with § 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

§ 200.185 and the informal hearings

provided under § 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.

§ 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 § 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 § 215.20, paragraph (b)(2) is

amended by adding a new sentence at

the end to read as follows:

§ 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 § 215.25, paragraph (a)(1) is

revised to read as follows:

§ 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 § 215.26 is added to read as

follows:

§ 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 § 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:

§ 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.
14832 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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:

§ 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 § 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:

§ 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

§ 235.13(c).)

* * * * *

11. A new § 235.13 is added to read

as follows:

§ 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

§ 235.10 or § 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 § 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 § 235.361(b).

(e) Mortgage insurance commitments.

Commitments to insure mortgages under

this part will not be issued or extended
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14833

unless the mortgagee has made the

certification required under paragraph

(d) of this section.

(f) Other related provisions. See

§ 235.10 for eligibility requirements,

specifically citizenship and eligible

immigration status; § 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 § 235,325, a new paragraph (c)

is added to read as follows:

§ 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 § 235,13.)

13. Section 235.350 is amended by

adding a new paragraph (a)(2)(iii) to

read as follows:

§ 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 § 235.375, a new paragraph

(b)(6) is added to read as follows:

§ 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 § 235.13(a)

(1) and (2);

(ii) At the first recertification of an

assistance contract, except with respect

to a mortgagor described in

§ 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 crossreference 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 ‘‘Livein 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:

§ 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 § 236.70, paragraph (a)(1) is

revised to read as follows:

§ 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:

§ 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:

§ 236.710 Qualified tenant.

* * * For restrictions on financial

assistance to noncitizens with ineligible

immigration status, see 24 CFR part 200,

subpart G.

20. In § 236.715, paragraph (a) is

revised to read as follows:

§ 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 § 236.765 is added to

subpart D to read as follows:

§ 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.
14834 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

(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 HUDOWNED 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 § 247.3, paragraph (c)(3) is

revised to read as follows:

§ 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 § 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:

§ 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:

§ 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 § 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 §§ 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 §§ 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

§ 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.
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 § 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 § 812.10.

§ 812.5a. Requirements concerning

documents.

For any notice or document (decision,

declaration, consent form, etc.) that

§§ 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.)

§ 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

§ 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

§ 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 §§ 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
14836 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 § 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 § 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 § 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 §§ 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 § 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 §§ 812.9 and 812.10

respectively. For all Section 8 programs,

denial or termination of assistance shall

be in accordance with the procedures of

§ 812.9.

§ 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 § 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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.

§ 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 § 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 § 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

§ 812.9(d), which includes notification

of appeal to the INS of the INS finding

on immigration status (see

§ 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.

§ 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

§ 812.9(e) has not been concluded;

(v) For a tenant, the informal hearing

process under § 812.9(f) has not been

concluded;

(vi) Assistance is prorated in

accordance with § 812.11;

(vii) Assistance for a mixed family is

continued in accordance with § 812.10;

or

(viii) Deferral of termination of

assistance is granted in accordance with

§ 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 § 812.6(g) or by the

expiration of any extension granted in

accordance with § 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 § 812.11;

(3) In the case of a tenant, the criteria

and procedures for obtaining relief

under the preservation of families

provision in § 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
14838 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 crossexamine 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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.

§ 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 § 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 § 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

§ 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 § 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
14840 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 §§ 882.216 or

887.405 of this chapter).

§ 812.11 Proration of assistance.

(a) Applicability. This section applies

to a mixed family other than a family

receiving continued assistance under

§ 812.10(c), or other than a family for

which termination of assistance is

temporarily deferred under § 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.

§ 812.12 Prohibition of assistance to

noncitizen students.

(a) General. The provisions of

§§ 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.

§ 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.

§ 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 § 812.8;

(2) Because the responsible entity was

required to provide an opportunity for

the family to submit evidence in

accordance with § 812.6;

(3) Because the responsible entity was

required to wait for completion of INS

verification of immigration status in

accordance with § 812.8;

(4) Because the responsible entity was

required to wait for completion of the

INS appeal process provided in

accordance with § 812.9(e); or
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14841

(5) Because the responsible entity was

required to provide an informal hearing

in accordance with § 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 § 812.8, and the

informal hearings provided under

§ 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.

§ 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:

§ 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 § 880.504, a new paragraph (e)

is added, to read as follows:

§ 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 § 880.601, paragraph (b) is

revised to read as follows:

§ 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

§ 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:

§ 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 §§ 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
14842 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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:

§ 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 § 881.504, a new paragraph (e)

is added to read as follows:

§ 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 § 881.601, paragraph (b) is

revised to read as follows:

§ 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:

§ 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 §§ 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 § 881.607, the second sentence

of paragraph (b)(3)(ii) is revised, and a

new paragraph (c)(4) is added, to read

as follows:

§ 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 § 882.116, paragraph (c) is

revised to read as follows:

§ 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 § 882.118, paragraph (a)(1) is

revised to read as follows:

§ 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 § 882.209, paragraph (a)(2) is

revised to read as follows:

§ 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 § 882.210, a new paragraph (f)

is added to read as follows:

§ 882.210 Grounds for denial or

termination of assistance.

* * * * *

(f) The family’s obligations as stated

in § 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 § 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:

§ 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 § 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:

§ 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
14844 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

basis of ineligible immigration status are

contained in 24 CFR 812.9.

* * * * *

47. In § 882.514, paragraph (f) is

amended by adding one sentence at the

end of the paragraph, to read as follows:

§ 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:

§ 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 § 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:

§ 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 § 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 § 883.101, the last sentence of

paragraph (c) is revised to read as

follows:

§ 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 § 883.605, a new paragraph (e)

is added, to read as follows:

§ 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 § 883.702, the section heading

and paragraph (b) are revised to read as

follows:

§ 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 § 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:

§ 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) * * *
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 § 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:

§ 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 § 884.118, paragraph (a)(3) is

revised to read as follows:

§ 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

§ 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 § 884.214, paragraph (b)(1) is

revised and a new paragraph (b)(8) is

added, to read as follows:

§ 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

§ 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 § 884.216, a new sentence is

added at the end of the paragraph to

read as follows:

§ 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:

§ 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.
14846 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

60. In § 884.223, a new paragraph (e)

is added to read as follows:

§ 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 § 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 § 886.119, the section heading

and paragraph (a)(3) are revised to read

as follows:

§ 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

§ 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 § 886.121, paragraph (b) is

revised and a new paragraph (c) is

added, to read as follows:

§ 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:

§ 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:

§ 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 § 886.129, a new paragraph (e)

is added, to read as follows:

§ 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 § 886.318, paragraph (a)(3) is

revised to read as follows:

§ 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

§ 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 § 886.321, the first two

sentences of paragraph (b)(1) are revised

and a new paragraph (b)(7) is added, to

read as follows:

§ 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 § 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:

§ 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:

§ 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 § 886.329, a new paragraph (e)

is added to read as follows:

§ 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 § 887.105, paragraph (b)(5) is

revised to read as follows:

§ 887.105 PHA responsibilities.

* * * * *

(b) * * *

(5) Determine the amount of, and

make, the housing assistance payment

(see § 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

§§ 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

§§ 887.353 and 887.361); and

* * * * *

74. In § 887.355, paragraph (b) is

redesignated as paragraph (c), and a new

paragraph (b) is added, to read as

follows:

§ 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:

§ 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 § 887.401, paragraph (a),

introductory text, and paragraph (a)(1)

are revised, to read as follows:

§ 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 § 887.403, paragraphs (d) and

(e) are redesignated as paragraphs (e)
14848 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

and (f), and a new paragraph (d) is

added, to read as follows:

§ 887.403 Grounds for PHA denial or

termination of assistance.

* * * * *

(d) The family’s obligations as stated

in § 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:

§ 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 § 900.102, the first sentence of

paragraph (g) is revised to read as

follows:

§ 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:

§ 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 § 904.104, the first sentence of

paragraph (b)(1) and paragraph (g)(2) are

revised, to read as follows:

§ 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 § 904.107, paragraphs (j)(2) and

(m)(1) are revised to read as follows:

§ 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

§ 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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:

§ 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 § 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:

§ 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
14850 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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
14852 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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

§ 905.340.

(ii) For applicants, the procedures for

the informal hearing before the IHA are

as follows:
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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,
14854 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 § 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;

§ 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 § 905.310 for

determining citizenship or eligible

immigration status before initial
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 § 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:

§ 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:

§ 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 § 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 §§ 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 §§ 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

§ 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
14856 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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 § 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 § 912.10.

§ 912.5a Requirements concerning

documents.

For any notice or document (decision,

declaration, consent form, etc.) that

§§ 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.)

§ 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 § 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

§ 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 §§ 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 § 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 § 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
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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 § 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 § 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 §§ 912.9 and 912.10

respectively.

§ 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 § 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.

§ 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 § 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
14858 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

§ 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 § 912.9(d), which includes

notification of appeal to the INS of the

INS finding on immigration status (see

§ 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.

§ 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

§ 912.9(e) has not been concluded;

(v) For a tenant, the PHA hearing

process under § 912.9(f) has not been

concluded;

(vi) Assistance is prorated in

accordance with § 912.11;

(vii) Assistance for a mixed family is

continued in accordance with § 912.10;

or

(viii) Deferral of termination of

assistance is granted in accordance with

§ 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 § 912.6(g) or by the

expiration of any extension granted in

accordance with § 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 § 912.11;

(3) In the case of a tenant, the criteria

and procedures for obtaining relief

under the preservation of families

provision in § 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).
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 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.

§ 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 § 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 § 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

§ 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 § 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
14860 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations

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.

§ 912.11 Proration of assistance.

(a) Applicability. This section applies

to a mixed family other than a family

receiving continued assistance under

§ 912.10(b), or other than a family who

is eligible for and requests and receives

temporary deferral of termination of

assistance under § 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.

§ 912.12 Prohibition of assistance to

noncitizen students.

(a) General. The provisions of

§§ 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.

§ 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.

§ 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 § 912.8;

(2) Because the PHA was required to

provide an opportunity for the applicant

or family to submit evidence in

accordance with § 912.6;

(3) Because the PHA was required to

wait for completion of INS verification

of immigration status in accordance

with § 912.8;

(4) Because the PHA was required to

wait for completion of the INS appeal

process provided in accordance with

§ 912.9(e); or

(5) Because the PHA was required to

provide an informal hearing in
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Rules and Regulations 14861

accordance with § 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 § 912.8, and the

informal hearings provided under

§ 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 § 960.204, paragraphs (a) and

(d)(4) are revised to read as follows:

§ 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 § 960.206, paragraph (a) is

revised to read as follows:

§ 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

§ 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:

§ 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