HUD Proposes Rule to Eliminate Mixed-Immigration-Status Families from Assisted Housing
By A.J. Johnson
HUD Proposes Rule to Eliminate Mixed-Immigration-Status Families from Assisted Housing
Proposed Amendments to 24 CFR Part 5, Subpart E Would Overhaul Section 214 Verification Requirements and End Prorated Assistance for Mixed Families
On February 20, 2026, the U.S. Department of Housing and Urban Development published a proposed rule in the Federal Register that would fundamentally reshape eligibility requirements for families in HUD-assisted housing. Titled "Housing and Community Development Act of 1980: Verification of Eligible Status," the proposed rule is cited at 91 FR 8151 (Document No. 2026-03405, Docket No. FR-6524-P-01, RIN 2501-AE16). It proposes sweeping amendments to HUD’s regulations at 24 CFR Part 5, Subpart E—the regulations that implement Section 214 of the Housing and Community Development Act of 1980.
The rule’s central objective is to require verification of U.S. citizenship or eligible immigration status for every applicant and participant in a Section 214-covered program, regardless of age, and to convert prorated assistance from an indefinite arrangement into a strictly temporary condition that lasts only while verification is pending. HUD frames these changes as bringing its regulations into "greater alignment with the wording and purpose of Section 214" and with the current Administration’s policy priorities, including Executive Order 14218, "Ending Taxpayer Subsidization of Open Borders."
Public comments are due by April 21, 2026. Submit comments electronically at www.regulations.gov (Docket ID: HUD-2026-0199) or by mail to the Regulations Division, Office of General Counsel, HUD, 451 7th Street SW, Room 10276, Washington, DC 20410-0500.
This article provides a detailed summary of the proposed rule’s key provisions and their potential impact on housing providers, public housing agencies, and the families they serve.
The proposed rule applies to the same "Section 214 covered programs" that are subject to existing noncitizen restrictions. These include Public Housing programs under the United States Housing Act of 1937; all Section 8 rental assistance programs (including Housing Choice Vouchers and project-based rental assistance); the Section 236 program (for below-market-rent tenants); and Housing Development Grant programs (for low-income units). HUD is also proposing to remove references to the Rent Supplement Program under Section 101 of the Housing and Urban Development Act of 1965 and the Section 235 program, as neither has active contracts or insurance commitments.
Importantly, the rule does not apply to Low-Income Housing Tax Credit (LIHTC) properties unless those properties are also assisted under one of the Section 214-covered programs listed above. However, LIHTC properties with project-based Section 8 contracts, public housing overlays, or other HUD assistance layers will be directly affected with respect to the HUD-assisted units and residents.
Perhaps the most consequential change in the proposed rule is the removal of existing § 5.508(e), which currently allows individuals in assisted housing to elect not to contend that they have eligible immigration status. Under HUD’s current framework, a person who elects "do not contend" status is excused from submitting documentation, no actual determination of immigration status is made, and the family’s assistance is prorated to exclude that individual. Critically, this prorated arrangement can continue indefinitely under current regulations.
HUD now maintains that this provision is inconsistent with the statutory text of Section 214, which does not authorize any option for a family member to decline to assert eligible status. HUD argues that Section 214 prohibits making financial assistance available to any individual whose eligible status has not been verified, except for the limited time needed to complete verification. Under the proposed rule, all individuals in Section 214-covered programs must submit a declaration of U.S. citizenship or eligible immigration status and a signed verification consent form, and must undergo verification through the SAVE system.
The practical effect of this change is stark: families that have received prorated assistance for years—or even decades—under the "do not contend" framework would be required to submit evidence of eligibility or face termination of assistance. For mixed-status families in which one or more members are undocumented, this effectively forces a choice between family separation (removing the ineligible member from the household) and loss of housing assistance for the entire family.
HUD’s current regulations, as amended by the 1987 Housing and Community Development Act, exempt individuals age 62 and older from certain verification requirements—they need only show proof of age rather than citizenship or immigration documentation. The proposed rule would eliminate this exemption entirely, requiring all individuals, regardless of age, to submit evidence and undergo verification. This includes providing a Social Security Number for SAVE verification, which some elderly residents may not have been required to provide previously.
The proposed rule would require responsible entities (PHAs and owners) to verify the citizenship or immigration status of every resident using the DHS/USCIS Systematic Alien Verification for Entitlements (SAVE) program. This would be a significant expansion of current practice. Under existing regulations, SAVE verification applies to noncitizens, while persons declaring U.S. citizenship need only submit a signed declaration—responsible entities may, but are not required to, request documentation.
Under the proposed rule, responsible entities would submit biographic information (first name, last name, date of birth) and an approved government-issued numeric identifier, such as a Social Security Number, to SAVE for all residents. The automated SAVE response would indicate whether the individual is a U.S. citizen or national or the individual’s immigration status. If the initial SAVE query does not confirm eligible status ("primary verification"), the responsible entity must proceed to "secondary verification," which involves collecting documentation from the individual, reviewing it, and, in some cases, initiating additional verification through SAVE.
HUD notes that SAVE currently has limitations—for example, it cannot process birth certificates or U.S. passports at the time of this proposed rule’s publication. For U.S. citizens whose status is not confirmed by the initial SAVE query and who present documents that SAVE cannot process, the responsible entity would review the documents to confirm authenticity. For documents that SAVE can process (such as naturalization certificates), the responsible entity would submit them through SAVE’s additional verification procedures.
Under the current regulatory framework, "mixed families"—those with both eligible and ineligible members—may receive prorated assistance indefinitely. The proposed rule would limit prorated assistance to the period while verification is pending for one or more family members. HUD argues that the modern SAVE system delivers results that are "almost instantaneous in most instances," making extended proration unnecessary. Once verification concludes—whether through primary verification, secondary verification, or the informal hearing process—all family members must have confirmed eligible status, or the family loses assistance.
HUD is also proposing to remove existing § 5.516(a)(1)(iii), which currently provides prorated assistance as a form of "preservation assistance" available to mixed-status families upon request. The removal of this provision, together with the elimination of "do not contend," closes the regulatory pathway that has allowed mixed-status families to remain in assisted housing with reduced subsidies.
The proposed rule retains the two forms of preservation assistance authorized by Section 214(c): prorated continued assistance and temporary deferral of termination of assistance. However, both forms remain available only to families receiving assistance under a Section 214-covered program on June 19, 1995 (the effective date of HUD’s original implementing regulations, which HUD used instead of the statutory date of February 5, 1988). Given that this date is now more than 30 years in the past, the pool of families eligible for preservation assistance is extremely small and continues to shrink.
HUD is also proposing to remove the existing definition of "other affordable housing" from § 5.518(b)(1) as it pertains to temporary deferral. The current definition—housing that is not substandard, of appropriate size, and renting for no more than the family’s current rent plus 25 percent—has been criticized by HUD as effectively making it impossible for deferred families to transition off assistance. By removing this definition, HUD would allow the deferral period to end regardless of the availability of specific housing alternatives that meet those criteria.
The proposed rule would codify and extend the reporting obligation under Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Under the proposed § 5.508(d)(4), the verification consent form must inform individuals that PHAs or owners must immediately report to DHS whenever personnel determines that any household member is present in the United States in violation of the Immigration and Nationality Act. Although PHAs have been subject to this reporting obligation under the 2000 Interagency Notice (65 FR 58301), the proposed rule would extend this requirement to project owners as well, creating uniform reporting obligations across all Section 214-covered programs.
This provision has drawn significant concern from housing advocates, who argue it could turn PHAs and housing owners into de facto immigration enforcement agents and chill immigrant families’ willingness to seek or maintain housing assistance.
The proposed rule sets differentiated timelines for existing tenants to submit evidence of citizenship or eligible status. Tenants in mixed families who have not previously submitted evidence will have 90 days from the effective date of the final rule to do so, with a possible 30-day extension—for a maximum of 120 days. All other tenants who have not previously submitted evidence would be required to do so at the next annual or interim reexamination of income and household composition after the final rule’s effective date.
Responsible entities must notify affected tenants of the new Section 214 requirements within 30 days of the final rule’s effective date. New applicants and new family members will continue to be required to submit evidence at the time of application or when the responsible entity expects verification of eligibility to occur.
HUD’s Paperwork Reduction Act analysis estimates that approximately 19,600 existing residents would be directly affected by the one-time reporting burden—distributed among Housing Choice Vouchers (11,990), Public Housing (3,380), Project-Based Rental Assistance (4,230), and Section 236 (7). The agency characterizes the impact on responsible entities as "low."
Advocacy organizations present a markedly different picture. The Center on Budget and Policy Priorities estimates that up to 20,000 families—comprising as many as 80,000 individuals—could lose assistance, including nearly 37,000 U.S. citizen children. The National Housing Law Project projects that the result could be more than 100,000 evictions. These estimates account not only for mixed-status families that would lose prorated assistance but also for U.S. citizens who may struggle to produce documentation. HUD’s own Regulatory Impact Analysis acknowledges that approximately 3.8 million U.S. citizen adults lack documentation proving their citizenship, and another 17.5 million are unable to easily obtain such documents.
Although this is still a proposed rule subject to a 60-day public comment period and not yet in effect, housing providers should begin considering its implications now. The following areas warrant attention.
PHAs and owners should review their current tenant populations to identify households that include members who elected "do not contend" status, members age 62 or older who have not undergone status verification, and any mixed-status families receiving prorated assistance. Understanding the scope of affected households will be critical to planning compliance activities and communicating with residents.
Responsible entities not already registered for the SAVE system should begin the registration process. Entities already using SAVE should assess whether their current capacity and staff training are adequate to handle the volume of verifications the proposed rule would require, particularly the initial wave of existing-tenant verifications.
The proposed rule’s secondary verification procedures would require responsible entities to collect, review, and retain copies of citizenship documentation that have not previously been required. This includes birth certificates, naturalization certificates, U.S. passports, consular reports of birth abroad, and certificates of citizenship. Housing providers should evaluate their document intake, review, and retention procedures in anticipation of these new requirements.
Properties with multiple funding layers—such as LIHTC properties with project-based Section 8 assistance—should carefully analyze how this rule would interact with their other program requirements. Although LIHTC does not impose citizenship or immigration status requirements, the Section 8 layer would subject applicable units and residents to these proposed requirements. Housing providers should ensure their compliance protocols address each program layer independently while maintaining consistent communication with affected residents.
Implementation of the proposed verification requirements must comply with the Fair Housing Act and Section 504 of the Rehabilitation Act. Housing providers should ensure that verification procedures are applied uniformly and do not result in disparate treatment of residents based on race, national origin, or other protected characteristics. Reasonable accommodations should be available to individuals with disabilities who may face challenges in obtaining or submitting required documentation.
This is not HUD’s first attempt to restrict mixed-status families’ access to assisted housing. A substantially similar proposed rule was published during the first Trump Administration but was never finalized—the COVID-19 pandemic shifted the Administration’s focus, and the Biden Administration subsequently rescinded the proposal. During that rulemaking, HUD received approximately 30,000 public comments, overwhelmingly opposing the measure. Housing advocates have indicated that the volume and substance of those comments could inform potential legal challenges to the current proposal.
The 60-day public comment period ends April 21, 2026. HUD is required under the Administrative Procedure Act to consider all substantive comments before issuing a final rule. Given the scope and significance of the proposed changes, a final rule—if issued—will likely not take effect before late 2026 at the earliest. Legal challenges are widely anticipated.
Housing providers, industry associations, advocates, and members of the public are encouraged to submit detailed comments that address both the legal basis for the proposed changes and their practical impact on assisted housing operations and the families these programs serve.
Proposed Rule: 91 FR 8151 (Feb. 20, 2026), Document No. 2026-03405
Federal Register: https://www.federalregister.gov/d/2026-03405
Official PDF: https://www.govinfo.gov/content/pkg/FR-2026-02-20/pdf/2026-03405.pdf
Submit Comments: https://www.regulations.gov/commenton/HUD-2026-0199-0001
Comment Deadline: April 21, 2026
Docket: FR-6524-P-01 / HUD-2026-0199
CFR Section: 24 CFR Part 5
RIN: 2501-AE16
This article is provided for informational purposes only and does not constitute legal advice. Housing providers should consult with qualified legal counsel regarding the application of this proposed rule to their specific circumstances. © 2026 A.J. Johnson Consulting Services, Inc. All rights reserved.
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