HUD Nixes 'Mixed Immigration Status' Proposed Rule

On April 2, HUD formally withdrew a Trump era proposed rule that would’ve adjusted how rental assistance is prorated to households with mixed immigration status. Instead of continuing to allow mixed-status households to live in HUD-assisted housing and prorating the amount of their assistance to cover only the eligible family members, the controversial 2019 proposal would’ve prohibited aid to the entire household. At the time of the proposal, HUD’s analysis showed that the rule change would cause 25,000 households, including 55,000 children, to separate, move to unsubsidized housing, or be evicted.

The withdrawal of the proposed rule represents the latest effort by the Biden administration to limit and possibly reverse policies established in the prior administration. HUD says, in accordance with the presidential directive expressed in the memorandum of Jan. 20, 2021, from the Assistant to the President and Chief of Staff, entitled "Regulatory Freeze Pending Review,’’ it is reviewing all its pending proposed rules to determine which ones should move forward.

HUD identified this proposed rule, "Housing and Community Development of Act 1980: Verification of Eligible Status,’’ as inconsistent with the Executive Order entitled "Advancing Racial Equity and Support for Underserved Communities Through the Federal Government’’ and the Executive Order entitled "Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.’’

What the Law Says

The Housing and Community Development Act of 1980 bars HUD from making financial assistance available to persons other than U.S. citizens or certain categories of eligible noncitizens in HUD’s public and specified assisted housing programs. The law lists certain eligible individuals for assistance and doesn’t prohibit prorated assistance for eligible household individuals who are part of mixed-status families—that is, families that have at least one eligible household member, as well as other ineligible household member(s).

Those eligible for assistance under the law are:

• U.S. citizens and nationals;
• Lawful permanent residents;
• VAWA self-petitioners;
• Asylees and refugees;
• Parolees;
• Persons granted withholding of removal/deportation;
• Victims of trafficking;
• Individuals residing in U.S. under compacts of free association with Marshall Islands, Micronesia & Palau; and
• Immigrants admitted for lawful temporary residence under the Immigration Reform & Control Act of 1986.

Current Practice for Mixed-Status Families

Under current law, families with at least one U.S. citizen or “eligible” immigrant can live in federally subsidized housing, and only family members applying for assistance are subject to verification of their immigration status.

Individuals in the household must submit or meet one of the following documentation requirements:

• Declaration that they are a U.S. citizen or noncitizen with eligible status;
• Eligible noncitizens must provide an original copy of a document designated by the Department of Homeland Security as acceptable evidence; or
• A household member can “Not Contend” eligibility (meaning they do not request consideration for assistance).

Trump Administration’s Proposed Rule

If it had been implemented, the proposed rule would’ve greatly revised eligibility standards. It would’ve prohibited prorated assistance to mixed-status families, even if some of its members were otherwise eligible to apply and participate in a HUD housing program. In addition, the proposed rule would’ve required the following:

• Require all noncitizen family members’ immigration statuses to be verified in USCIS’s Systematic Alien Verification for Entitlements (SAVE) Program, regardless of whether each family member is applying for benefits;
• Require the housing unit’s head of household to be verified as eligible through the SAVE Program, regardless of whether he/she is applying for benefits; and
• Institute additional documentation requirements for all applicants, including U.S. citizens and seniors.

Formal Withdrawal

The proposed rule was never finalized, and HUD published a Federal Register Notice to formally withdraw it. The rule was officially withdrawn as of April 2.

HUD will continue to use the guidance under Section 214 of the Housing and Community Development Act of 1980. Mixed-status families, those with members who are eligible and others who are ineligible for housing assistance based on their immigration status, will continue to be permitted to live together in subsidized housing with prorated assistance. In addition, U.S. citizens, lawful permanent residents, refugees, and asylum seekers are eligible to receive housing assistance.