Assistance to Non-Citizens in the Section 8 Program
Section 214 of the Housing & Community Development Act of 1980 prohibited HUD from providing housing assistance to aliens unless they meet certain residency requirements.
In 1996, Congress amended Section 214 to revise provisions regarding verification of eligibility and proration of assistance. In Section 214(h) on verification, Congress included an opt-out provision for Public Housing Agencies (PHA). The apparent intent of this provision was to allow PHAs to opt-out of the verification provision, but the literal language allowed PHAs to opt-out of Section 214 in its entirety. The mistake was corrected by the Quality Housing & Work Responsibility Act of 1998 (QHWRA) and allowed PHAs to elect not to verify eligibility before providing financial assistance. This provision does not permit owners of Section 8 properties to do the same; in the case of these properties, verification of eligibility prior to the provision of assistance is always required.
PHAs are the “responsible entity” for implementing the Section 214 requirements for the Housing Choice Voucher Program.
Eligibility of Noncitizens (24 CFR §5.506 (a) (2))
To be eligible, noncitizens must fall into one of the following categories:
- Lawfully admitted for permanent residence;
- Lawfully admitted for temporary resident status as Special Agricultural Workers;
- Granted refugee or asylum status or granted conditional entry because of persecution or fear of persecution on account of race, religion, or political opinion or because of being uprooted by national calamity;
- Granted parole status by the Attorney General;
- Lawfully present because the Attorney General withheld deportation due to a threat to life or freedom; or
- Granted amnesty for temporary or permanent residence.
Evidence of Eligibility [24 CFR §5.508 (b) and (c)]
To receive assistance, each family member – regardless of age – must submit evidence of citizenship or eligible immigration status.
For U.S. citizens, all that is required is a signed declaration of citizenship, though a PHA must request verification through presentation of a passport or other documentation. Noncitizens must submit a signed declaration of eligible immigration status and proper documentation.
Eligibility Verification [24 CFR §5.512 (a) and (b)]
The primary method of verification is use of the INS (HUD regulations still refer to Immigration & Custom Enforcement as the INS) System for Alien Verification of Entitlements (SAVE) which provides access to names, file numbers, and admission numbers of noncitizens. If the SAVE system fails to verify eligibility, the PHA/owner must use secondary verification, consisting of a manual search of INS records.
Generally, no household may receive assistance unless at least one family member is eligible for assistance. However, as noted above, a PHA may elect to provide assistance before verification as long as eligibility is verified by the first annual recertification. This rule applies for voucher residents only – it does not apply to public housing.
24 CFR §5.514 (b) (2) provides that assistance cannot be delayed, denied, reduced, or terminated due to delays in the verification of immigration documents submitted by the applicant.
Denial or Termination of Assistance [24 CFR §5.514 (c)]
Assistance must be denied or terminated to an applicant or recipient if evidence of citizenship or eligible immigration status is not submitted or cannot be verified by primary or secondary verification. If it is determined that a family member knowingly permitted an ineligible individual to reside permanently in a unit (and assistance was not prorated), assistance must be terminated for at least 24-months.
24 CFR §5.514 (d) and (f) provides that from the date of denial or termination of assistance, the family has 30-days to appeal to the INS. The INS must give a decision within 30-days unless it notifies the family and PHA/owner of the reason for a delay. When the INS decision is received, the family must be notified of its right to an informal hearing, which must generally be held within 30-days.
24 CFR §5.514 (b) (2) provides that if a hearing is requested, assistance may not be terminated or reduced prior to the hearing.
Continuation of Assistance [24 CFR §5.518 (a)]
An assisted family with both eligible and ineligible members will be eligible for continued assistance if the family was receiving assistance on June 19, 1995, the head of household or spouse has eligible immigration status, and the family does not include any ineligible member other than the head of household, spouse, parents of the head of household or spouse, or children of the head of household or spouse. After November 29, 1996, continued assistance to a mixed family is prorated based on the number of family members eligible for assistance.
Proration of Assistance [24 CFR §5.520 (c)]
A mixed family not eligible for continued assistance is entitled to receive a prorated Section 8 subsidy based on the number of eligible family members. The proration will not affect the rent received by the owner. The family is responsible for the difference between the prorated assistance and the unit rent.
Noncitizen Students [24 CFR §5.522]
The provisions for continued assistance and temporary deferral of termination of assistance do not apply to noncitizen students admitted temporarily and solely for educational studies and their families, unless the spouse of the student is a citizen.