HUD Handbook 4350.3 § 4-31

This paragraph describes the conditions under which owners must deny assistance to
         noncitizens and the DHS appeals process that may be initiated by a family to challenge
         a denial. Owners should follow the HUD requirements provided within this paragraph to
         ensure that only U.S. citizens and eligible noncitizens receive federal housing
         assistance. This entire paragraph contains key regulatory requirements. Optional
         owner policies are noted in the text.

         NOTE: See Chapters 3, 7, and 8 for other citizenship and eligible immigration status
         requirements. (Restriction on assistance to noncitizens is addressed in paragraph 3-12,
         changes in subsidy are addressed in paragraph 7-11, and termination of assistance is
         addressed in paragraph 8-7.)

A.       Applicability

                 As stated in paragraph 3-12, the restriction on assistance to noncitizens applies
                 to all properties covered by this handbook, except the following:

                 1.       Section 221(d)(3) BMIR properties;

                 2.       Section 202 PAC;

                 3.       Section 202 PRAC; and

                 4.       Section 811 PRAC.

                 5.       Section 202 projects with units not receiving assistance under the Rent
                          Supplement or Section 8 programs.

        B.       Offering and Continuing Assistance

                 An owner cannot deny assistance to applicants who submitted their immigration
                 documentation in a timely manner, but for whom the DHS verification or appeals
                 process has not been completed.

                 1.       If a unit is available, the family has come to the top of the waiting list, and
                          at least one member of the family has submitted the required
                          documentation in a timely manner and has been determined to be
                          eligible, the owner must offer the family a unit, providing subsidy to those
                          family members whose documents were received on time.

                 2.       However, until the owner has received and verified the immigration status
                          of any remaining noncitizen family members, the owner must provide
                          prorated assistance based on those family members who submitted their
                          immigration documentation in a timely manner. See the Example – DHS
                          Verification Process Delayed in Paragraph 3-12 K.

        C.       Events Triggering Denial of Assistance

                 An owner must deny assistance to an applicant upon the occurrence of any of
                 the following:

                 1.       The applicant fails to submit evidence of citizenship (i.e., the declaration)
                          and eligible immigration status by the date specified by the owner.

                 2.       The applicant submits evidence of citizenship and eligible immigration
                          status on a timely basis, but DHS primary and secondary documentation
                          does not verify eligible immigration status of a family member; and

                          a.       The family does not pursue a DHS appeal or informal hearing
                                   rights as provided in this section, or

                          b.       The family pursues a DHS appeal and informal hearing, but the
                                   final decision is against the family member.

D.       Required Notice

                 The notice of denial or termination of assistance must advise the applicant family
                 that:

                 1.       The owner will deny or terminate rental assistance and give reasons for
                          this action;

                 2.       The family may be eligible for proration of assistance;

                 3.       Tenants – but not applicants – may be eligible to obtain relief under the
                          provisions for preservation of families (i.e., they may be eligible for a
                          temporary deferral of denial of assistance).

                 4.       The family has a right to request an appeal to the DHS of the results of
                          secondary verification of immigration status and to submit additional
                          documentation or a written explanation in support of the appeal;

                 5.       The family has a right to request an informal hearing with the owner either
                          upon completion of the DHS appeal or in lieu of the DHS appeal (the
                          family can take advantage of two types of appeal); and

                 6.       For applicants, the notice of denial must advise that if they have failed the
                          primary and secondary verification and submitted an appeal to the DHS,
                          but the DHS process has not been concluded, the applicant will receive
                          assistance in a timely manner. (If the DHS decision is negative, the
                          family’s assistance may then be terminated.) However, once the DHS
                          appeal process is complete, and the family receives a negative decision
                          on the DHS appeal, the owner may delay assistance while providing the
                          family with an opportunity for an informal meeting to appeal the decision.

        E.       DHS Appeal Process

                 1.       Submission of appeal request. When the owner receives notification from
                          the DHS that secondary verification has failed to confirm eligible
                          immigration status, the owner must notify the family of this result. The
                          family has 30 days from the date of the owner's notification to request an
                          appeal of the DHS results. The family must make the request in writing
                          directly to the DHS and must provide the owner with a copy of the written
                          request for appeal and proof of mailing.

                 2.       Documentation to be submitted as part of appeal to DHS. If the family
                          has additional documentation or written explanation to support this
                          appeal, the family must submit it directly to the DHS office. This material
                          must include a copy of the DHS document verification request, Form DHS
                          G-845S (used by the owner to process the secondary verification
                          request), or any other form specified by the DHS, and a cover letter
                          stating that the family is requesting an appeal of the DHS immigration
                          status verification results. (See Exhibit 4-2, DHS Documentation
                          Verification Request Form.)

3.       When decision will be issued by DHS. The DHS will issue a decision
                          within 30 days of its receipt of documentation concerning the family's
                          appeal of the verification of immigration status. The notice will be sent to
                          the family, and a copy will be sent to the owner. If, for any reason, the
                          DHS is unable to issue a decision within 30 days, the DHS will inform the
                          family and owner of the reason for the delay.

                 4.       Notification of DHS decision and of informal hearing procedures. When
                          the owner receives a copy of the DHS decision, the owner must notify the
                          family of its right to request an informal hearing on the owner's ineligibility
                          determination.

                 5.       No delay, denial, reduction, or termination of assistance until completion
                          of DHS appeal process. Until any appeal made to the DHS is resolved,
                          owners must not delay, deny, reduce, or terminate assistance on the
                          basis of immigration status.

                 6.       When request for informal hearing is to be made. If the DHS decision will
                          cause the applicant to be denied, or if the family chooses not to appeal to
                          DHS, the family may request that the owner provide an informal hearing.
                          The request for a hearing must be made either within 30 days of receiving
                          the notice from the owner denying assistance, or within 30 days of
                          receiving the DHS appeal decision.

                 7.       Retention of documents. The owner must retain for a minimum of 5 years
                          the following documents that may have been submitted to the owner by
                          the family, or provided to the owner as part of the DHS appeal or the
                          informal hearing process:

                          a.       The application for financial assistance;

                          b.       The form completed by the family for income re-examination;

                          c.       Photocopies of any original documents (front and back), including
                                   original DHS documents;

                          d.       The signed verification consent form;

                          e.       The DHS verification results;

                          f.       The request for an DHS appeal;

                          g.       The final DHS determination;

                          h.       The request for an informal hearing; and

                          i.       The final informal hearing decision.