PHADA Advocate (vol. 12, number 22, 12/15/97)
The confusion revolves around the question of determining if housing assistance qualifies as a "federal public benefit program." The guidance appears to be contradictory. On the one hand it states that a "federal public benefit program is ... any retirement, welfare, health, disability, public or assisted housing ... program." However, the same guidance exempts "programs for housing or community development assistance or financial assistance administered by the Secretary of HUD."
A spokesperson for the INS told PHADA that it is the intent that public and assisted housing be identified as a public benefit program. This same spokesperson, however, was not able to explain the apparent contradiction.
A related issue of whether public and assisted housing is a "means tested" program, does not seem to be resolved by this guidance. The Welfare Reform Act makes new immigrants completely ineligible for federal means tested programs. HUD has indicated that the Department does not believe housing programs are means tested but has asked for clarification from the Department of Justice. It does not appear that this guidance serves that purpose.
Assuming that public housing is a federal public benefit program, HAs are required by this guidance to verify immigration status. Housing agencies must determine for any applicant entering the country after enactment of the Welfare Reform Act on August 22, 1996, whether the applicant is a citizen, a U.S. non-citizen national, or a qualified alien.
The INS guidance of November 17 outlines a process that entities should use in the absence of any other system. To verify that an applicant is a citizen or non-citizen national, agencies have the option to ask for a written declaration of citizenship or "non-citizen national" status which could be considered sufficient. Alternatively, the agency could ask the applicant for a document demonstrating his or her status. A list of eligible documents, including a birth certificate or a passport, is provided in the guidance. If the document appears authentic, the agency should accept it as sufficient. In other cases, the agency should depend upon verification of the document by the issuing entity.
To achieve "qualified alien" status, both a written declaration of eligibility and verification of documents is required. The documents that would satisfy the eligibility requirements are listed in the guidance. If the agency involved concludes that the documents support the written declaration, the agency may approve the public benefit. In cases where there is doubt about the authenticity of the documents, agencies administering the assistance must use the SAVE verification system or seek to have the INS conduct a manual search. If the INS notifies the agency that it cannot verify the alien status, the agency involved (HA) would be required to find the applicant ineligible.
A second significant issue which is still in need of resolution is the treatment of income of an immigrant's sponsor(s). The Welfare Reform Act requires the Attorney General to issue regulations that require sponsors and immigrants to sign legally binding affidavits of support. With a few emergency-related exceptions, 100 percent of both the sponsor's income and that of the sponsor's spouse would be counted as the immigrant family's income for eligibility purposes until the immigrant has worked for ten years or has become a citizen.
Finally, there are questions regarding the enforceable nature of the Justice Department guidance. In most cases, "guidance" does not have the force of regulation or law. However, in the absence of regulations, guidance assumes significantly more import. The Welfare Reform Bill requires final regulations within 18 months of enactment, or by February 22, 1998. Given that no proposed rule has been offered, it appears unlikely that the Attorney General will meet this deadline.
PHADA has asked both HUD and the INS for clarification on the issues of public and assisted housing being defined as a federal public benefit program, as a means tested program, and issues related to citizenship and immigration status verification. The Advocate will keep readers advised of future developments as they warrant.