The Department of Housing and Urban Development (HUD) has published proposed regulations that would terminate federal housing assistance to members of immigrant families  with “mixed” legal immigration status (that is, to members of families that reside together and are comprised of some members with U.S. citizenship or other legal immigration status, and other members who immigrated unlawfully). In order to be considered, comments must be received by HUD by no later than 11:59 PM Eastern Time on July 9, 2019.

The Basics:
  • By statute, federal assistance under many housing programs can be made available only for the benefit of U.S. citizens and certain categories of non-citizens legally residing in the U.S. who have “eligible immigration status” for assistance.
  • Currently, the Department of Housing and Urban Development (HUD) provides housing assistance in an amount based on the number of people in a family housing unit that apply for assistance and furnish the Department with documentation of U.S. citizenship or another eligible immigration status.  Other members of the family residing with an applicant or applicants can elect not to contend that they have eligible immigration status for receipt of assistance, and, therefore, not to submit any documentation for verification.
  • The regulations require that the amount of financial assistance made available to a member or members of this type of “mixed” family unit be prorated, based on the number of individuals in the family for whom eligible immigration status has been affirmatively established. No amount of assistance is given to account for or support the presence of ineligible individuals in the assisted housing unit.  HUD now proposes to change these regulations in two ways:
  • The proposed new rules would specify that an individual who has not submitted documentation verifying his/her eligible immigration status may not serve as the leaseholder of an assisted housing unit, even as part of a mixed family whose assistance is prorated based on the percentage of members with eligible status.
  • In addition, the newly proposed regulations would require that, in order for any member or members of a household to receive housing assistance, all members of that household under the age of 62 must document their eligible immigration status to HUD. Prorated assistance would be possible only on a brief, temporary basis while HUD verifies the immigration eligibility status of all household members.
  • This new policy would, among other consequences, lead to denial of housing assistance to children who are U.S. citizens but whose parent or parents may have immigrated illegally — with the result that many of those children would either become homeless or have to be separated from their parents.
  • HUD’s proposal represents a change in its interpretation of provisions of the Housing and Community Development Act of 1980 (as amended) that prohibits making housing assistance available “for the benefit of” aliens (foreign nationals) without lawful resident status in the United States. 


Summary of the Proposed Regulations:

Section 214 of the Housing and Community Development Act prohibits the Secretary of HUD from making financial assistance available (in HUD housing programs specified by the statute) for the benefit of persons other than United States citizens or certain categories of eligible non citizens. The new regulations would require verification of the eligible immigration status of any recipient of assistance under a covered program who is under the age of 62, as well as of all other members of the recipient’s household under 62 years of age, whether or not those other individuals have applied or claimed to be eligible for assistance.  In other words, under the new rules, an individual’s eligibility for housing assistance would be destroyed by the failure of any other non-elderly member of the individual’s household to also establish immigration eligibility for housing assistance.

Accordingly, the proposed rules would no longer allow some members of a family residing together an option (existing under current regulations) to not apply for any amount of assistance based on their residence in the household — thus lessening the amount of financial assistance that can be afforded the household, but also avoiding any need to claim or verify eligible immigration status to HUD. The new regulations would make a family’s receipt of prorated assistance (which is now available to “mixed” families) a strictly temporary and short-lived condition pending verification of eligible status for all family members, instead of a potentially long-term situation. In addition, the proposed rule would specify that a person who is not in eligible immigration status may not serve as the leaseholder for an assisted housing unit, even as part of a mixed family whose assistance is prorated based on the percentage of members with eligible status.

HUD’s Justification for Proposing Regulatory Changes:

HUD seeks to justify it’s proposal as a more faithful interpretation and implementation of the governing statute than current regulations (which in effect permit potentially long-term, prorated housing assistance to a family with “mixed” immigration status).  The Housing and Community Development Act provides that the HUD Secretary “may not make financial assistance available for the benefit of” an alien (that is, a foreign national) who does not fall into one of several enumerated categories of lawful U.S. residence.  Current regulations reflect the view that providing financial housing assistance to an eligible individual, in an amount calibrated to comprise housing assistance for that single individual, does not constitute assistance “for the benefit of” other people that may reside with the eligible recipient, but on whose account no additional assistance has been sought or received.

Under the current Administration, however, HUD reasons that housing assistance to any member of a family confers a “benefit” on everyone residing with that person; and seemingly recognizes no distinction between, on the one hand, affording an eligible individual housing assistance that may incidentally benefit an ineligible person or persons and, on the other hand, granting assistance “for the benefit of” ineligible individuals who have not applied for assistance.  Thus today’s HUD construes the statutory prohibition against assistance “for the benefit of” an illegal alien to prohibit providing assistance to a lawful resident alien, or even a U.S.citizen, if that assistance also has an incidental effect of “benefitting” a person without eligible immigration status.   

Additional Information and Resources :   

HUD’s public explanation of its rationale for changing its statutory interpretation, and all-but eliminating the prorated housing assistance that now enables American citizens and lawful resident aliens in “mixed” family units to receive housing program benefits for which they are individually eligible, is fully set out in the Department’s Notice of Proposed Rulemaking.  In judging how persuasive you find the Department’s explanation, however, you may also find it useful to directly examine the statutory text of Section 214 of the Housing and Community Development Act of 1980, as amended, and decide for yourself whether parts of that text are being ignored or mischaracterized.

HUD’s explanation of its proposed action raises a question of whether Congress used the word “for” — in the statutory provision prohibiting “make[ing] financial assistance available for the benefit of any alien” lacking lawful resident status — in the sense of the word indicating purpose or an intended goal (that is, consistent with the first definition of “for” in the Merriam-Webster Dictionary).  If so, it would undermine HUD’s current contention that all (including entirely incidental) benefit from housing assistance to an ineligible, non-applicant alien is properly prohibited as assistance “for the benefit of” that alien. Questions about the legitimacy of HUD’s statutory analysis, however, go beyond this threshold linguistic issue. 

The Department’s discussion of statutory provisions also makes selective reference to statutory text in a manner that creates inaccurate impressions of the law.  For example,  HUD’s Notice quotes language in Section 214 to the effect that the  “Secretary [of HUD] may not provide . . . assistance for the benefit of . . . [an] individual before documentation [of eligible immigration status] is presented and verified.”  This quote is seemingly offered in support of HUD’s contention that the statute prohibits an individual who “benefits” from housing assistance to another family member from opting not to apply individually for assistance and not to provide documentation of immigration eligibility to HUD.  Yet, even putting aside the question of whether such an ineligible alien’s receipt of a “benefit” that is purely incidental to assistance afforded another person is tantamount to federal assistance being made available “for” the alien’s benefit, this particular statutory language does not relate to the issue at hand.  The full and accurate language of this provision reads as follows:

“In the case of an individual applying for financial assistance on or after September 30, 1996, the applicable Secretary may not provide any such assistance for the benefit of that individual before documentation is presented and verified …”  

In other words, the provision pertains only to assistance afforded “an individual applying for financial assistance,” and when it can be received by that individual. It expressly does not pertain to potential receipt of “benefits” by an individual who chooses not to apply for assistance at all.

In another misleading portion of its Notice, HUD acknowledges statutory references to prorated assistance as potentially permissible; but only mentions provisions allowing prorated assistance (1) as“preservation assistance” to prevent the separation of families already receiving assistance on February 5, 1988, and (2) as a way “to permit the orderly transition of [an individual and any family members] … to other affordable housing” in the case of families who became ineligible to receive assistance as of February 5, 1988 (as a result of statutory amendments to the law enacted in 1987). This can easily be read to imply that these are the only situations in which the statute permits prorated assistance to a mixed family. Yet language in the statute’s subsection defining “financial assistance” (inexplicably ignored in HUD’s recent Notice) provides generally and expressly that:

“If the eligibility for financial assistance of at least one member of a family has been affirmatively established under the program of financial assistance and under this section, and the ineligibility of one or more family members has not been affirmatively established under this section, any financial assistance made available to that family by the applicable Secretary shall be prorated, based on the number of individuals in the family for whom eligibility has been affirmatively established under the program of financial assistance and under this section, as compared with the total number of individuals who are members of the family.”

In short, there are sufficient weaknesses in the statutory analysis underlying HUD’s proposed regulation changes to raise some question about whether other factors might be in play (such as, for example, a purpose to punish illegal immigrants and their families).  One obvious and significant impact from the proposed rule changes would be to withdraw housing assistance from American-born children of illegal immigrants — that is, minors who are American citizens but whose parents do not have “eligible immigration status” for housing assistance. Indeed, HUD’s own estimates indicate that some 55,000 children who are citizens or lawful residents of the U.S. will be displaced should the proposed regulations be put into effect.

You can find online articles discussing the likely impact on citizen and lawfully resident children, as well as other aspects of HUDs proposed new rules, on the websites of Housewire, and Houston Public Media. Other news outlets and publications that have reported on the proposed rules include The Washington Post and Pacific Standard, as well as City Lab and Curbed New York.

When You Are Ready to Comment on HUD’s Proposal:

The easiest way to comment on the proposed new HUD regulations is to go to the Comment Page for this topic on the Government’s eRulemaking website, type your comments into the box provided for that purpose, and follow the other instruction on that page for submission.

Comments can also be submitted in letter form to the Rules Docket Clerk of the HUD Office of the General Counsel, by mail addressed to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500.  All communications should refer to Docket ID No. HUD-2019-0044-0001 and state that you are commenting on the Proposed Rule entitled “FR-6124-P-01: Housing and Community Development Act of 1980: Verification of Eligible Status.”

In order to be considered by HUD, comments must be received by the Department no later than 11:59 PM Eastern Time on July 9, 2019. (Please note that if you submit comments by mail, rather than electronically, you are advised to assure delivery of your letter at least two weeks in advance of the due date, because security measures at federal buildings often result in mail delays.)