Is Your Site Exempt from the Noncitizen Rule?

December 14, 2021

Complying with HUD's noncitizen rule can be complicated and burdensome. You and the household must complete many forms to determine the citizenship and immigration status of all applicants and new household members. And then you must verify household members' status and properly calculate the amount of assistance the household can get.

Complying with HUD's noncitizen rule can be complicated and burdensome. You and the household must complete many forms to determine the citizenship and immigration status of all applicants and new household members. And then you must verify household members' status and properly calculate the amount of assistance the household can get.

But certain types of assisted sites don't have to comply with this rule. As a result, some managers may not realize they're exempt. They assume that because HUD Handbook 4350.3 incorporates HUD's noncitizen rule requirements and their sites must comply with handbook requirements, they must comply with the noncitizen rule.

We'll tell you the basics of the noncitizen rule and spell out which assisted sites must comply with it and which don't have to.

Noncitizen Rule Basics

HUD's noncitizen rule allows households composed entirely of U.S. citizens or certain eligible noncitizens to get full assistance payments, but limits the assistance that households with members who aren't U.S. citizens or eligible noncitizens can get. This means that sites covered by the rule can't collect assistance on households made up entirely of ineligible noncitizens, such as noncitizen students and illegal aliens, and must prorate the rent and assistance for “mixed” households—that is, households that have U.S. citizens and/or eligible noncitizens and ineligible noncitizens [HUD Handbook 4350.3, par. 3-12(G)].

To comply with the noncitizen rule, sites must ask all members of an applicant household to sign a declaration stating whether they're U.S. citizens or noncitizens eligible for housing assistance under HUD's rules. Eligible noncitizens must provide documentation of their status, which sites must verify with the Department of Homeland Security (DHS).

Sites that Must Comply

Sites that operate under the following programs must comply with the noncitizen rule:

  • Section 236;
  • Rental Assistance Payment;
  • Rent Supplement;
  • Section 8 New Construction;
  • Section 8 Substantial Rehabilitation;
  • Section 8 Loan Management Set-Aside;
  • Section 8 Property Disposition;
  • State agency financed (generally New Construction or Substantial Rehabilitation sites);
  • Section 202 with Section 8 Assistance (Section 202/8); and
  • Rural Housing Section 515 with Section 8 Assistance (RHS Section 515/8).

Sites that Need Not Comply

Sites that operate under the following programs aren't required to comply with the noncitizen rule:

  • Section 221(d)(3) BMIR;
  • Section 202 PAC;
  • Section 202 PRAC;
  • Section 811 PRAC; and
  • Section 202 with units not receiving assistance under the Rent Supplement or Section 8 programs [HUD Handbook 4350.3, par. 3-12(F)].

Verification Basics

If the noncitizen rule applies to your site, HUD requires that all applicants declare in writing whether they’re U.S. citizens, eligible noncitizens, or neither [HUD Handbook 4350.3, par. 3-12(B)(2)]. You must also verify this whenever a new member moves into an existing household.

If members claim U.S. citizenship. All you need to support this claim is a declaration signed by the member (or parent, in the case of a minor child). HUD doesn’t require any further verification, but you may request verification if you wish [HUD Handbook 4350.3, par. 3-12(I)(1)(a)].

If members claim to be eligible noncitizens. In this case, you must get documentation to support the claim. Noncitizens under the age of 62 claiming eligible status must sign a verification consent form giving you permission to verify the claim with DHS. Along with a declaration that they’re eligible noncitizens, HUD requires these members show one of the DHS-approved documents [HUD Handbook 4350.3, par. 3-12(I)(1)(c)(3)]. And owners are required to verify with the DHS the validity of documents provided by applicants [HUD Handbook 4350.3, par. 3-12(H)]. Acceptable DHS documents include:

  • Form 1-551 (Permanent Resident Card);
  • Form I-94 (Arrival-Departure Record annotated with the proper designation);
  • Form I-94 (Arrival-Departure Record) with no annotation accompanied by a proper court decision or letter granting asylum or withholding deportation;
  • A receipt issued by DHS indicating application has been made; or
  • Other acceptable evidence as determined by DHS [HUD Handbook 4350.3, Figure 3-4]. If other documents are determined by DHS to constitute acceptable evidence of eligible immigration status, they will be announced by notice published in the Federal Register.

However, for eligible noncitizens 62 years and older, you don't have to verify the immigration status of these applicants. You just need a signed declaration of eligible noncitizen status and proof of age. You can use the following documents to verify their age:

  • Birth certificate;
  • Baptismal certificate;
  • Military discharge papers;
  • Valid passport;
  • Census document showing age;
  • Naturalization certificate; or
  • Social Security Administration benefits printout [Handbook 4350.3, app. 3].

Although you don't need to ask applicants over 62 years old who declare they’re eligible noncitizens to consent to your verifying their immigration status since you won’t be verifying that status, you need to get consent from all other applicants who declare that they’re eligible noncitizens. See Exhibit 3-6 of Handbook 4350.3 for a sample verification consent form that you can use for this purpose.

 

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