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Immigration Issues for Subsidized Tenants

Produced by Massachusetts Law Reform Institute
Last Updated March 2015

If I am a tenant in public or subsidized housing, can my family's immigration status become an issue after we have moved in?

Yes, but only if you live in one of the federal restricted programs listed in What housing programs limit applications from immigrants? and there is some kind of change in terms of who is living with you or in the immigration status of members of your household.

If you live in an unrestricted program listed in What housing programs take applications from immigrants?, then any changes in your immigration status or who is living in your household should not affect your ability to continue living there. The only exception is if your housing authority tries to transfer you from an unrestricted program to a federal restricted program and no one in your family is a citizen or eligible noncitizen. See What if I am being transferred from state to federal public housing? for more information.

If you live in a federal restricted program, the issue that could affect your tenancy could come up in a number of ways:

  • You want to add a family member who is not in an eligible category.
  • You lose a family member who was eligible.
  • You claimed eligible status when you moved in, it was not verified by the time you moved in, then after you leased up it was determined that one or more members were not eligible.
  • Also, in a few cases, federal housing authorities and subsidized landlords have been slow to check all current tenants to make sure someone in the household has eligible immigration status. You may be in a situation where no one in your household is a citizen or eligible noncitizen and you are still living in one of the programs listed in What housing programs limit applications from immigrants?.

Typically, if there are any of these types of change in your immigration status and you live in a federal restricted housing program, one of three things can happen: your rent could change, you could be asked to move out, or you could get a deferral from a move. See What could happen if there is a change in my family's status? for more details.

What happens if there is a change in my household?

If you live in a federal restricted program and you want to add a family member to your household, the housing authority or subsidized landlord will need to verify that the addition is a citizen or eligible noncitizen, or that the new addition does not contend to have eligible status. See Do I have to be a U.S. citizen to apply for public and subsidized housing?.

If the person you are adding to the household is a citizen or eligible noncitizen, then your rent may be adjusted to a lower amount. If the new person is not eligible, adding her to the household may result in a new pro-rated rent which could increase the amount you pay. You should ask the housing authority or subsidized landlord about the potential change in your rent so that you know how adding the individual to your household will impact you financially.

If you lose a household member, and your new household no longer contains any citizens or eligible noncitizens, losing the eligible household member may make your entire family ineligible for that federal housing program.

What if I am being transferred from state to federal public housing?

Before the transfer, you need to ask the housing authority or subsidized landlord some important questions. First, you need to know whether the new unit has any citizenship or immigration restrictions. See What housing programs take applications from immigrants? and What housing programs limit applications from immigrants?. Second, you need to know whether your rent will change. You should ask the housing authority or subsidized landlord to explain how the transfer will affect your rent. If the transfer will make you ineligible for continued assistance or create a dramatic increase in your rent, you should be able to refuse the transfer and limit any future transfers so that you remain in state-assisted housing.

What could happen if there is a change in my family's status?

If there is a change in your family's status or your housing authority wants to transfer you from state to federal housing, you could face the following:

  • Pro-rated assistance. Depending on the change, and depending on whether you previously had a pro-rated rent, your rent could go either up or down. See What is pro-rated assistance or pro-rated rent? for an explanation of pro-rated rent.
  • Temporary deferral of termination of assistance. If the change or transfer means that there are now no eligible household members, you may be required to move. However, the housing authority or subsidized landlord can postpone the end of the assistance by granting a temporary deferral of termination of assistance. The temporary deferral can last for six months at a time, up to a maximum of 18 months (with an exception for those with pending asylum applications, discussed in What if I have applied for asylum or refugee status but do not have a final decision?). You may want this temporary deferral if you think you will find alternative housing or that some household members will become eligible before the 18 months are over. If the family remains beyond the 18-month period, it must then either have its rent pro-rated (if there is at least one eligible household member) or be terminated from assistance (if there are no eligible household members).35
  • You move out.

The housing authority or subsidized landlord is supposed to give you written notice of its decision regarding your immigration status, your rights, and certain options that you have. If you disagree with the decision that one or more household members are ineligible, or you dispute the amount of pro-rated rent, you may file an appeal; your assistance and right to stay in your apartment should remain unaffected during the appeal. See Is there any appeal process?.

Before moving out, you should check with your housing authority or subsidized landlord to see if you can transfer to one of the housing programs listed in What housing programs take applications from immigrants? where there are no restrictions. You may also apply for such programs wherever there are openings.

What if I have applied for asylum or refugee status but do not have a final decision?

If you are already a federal public or subsidized housing tenant and have an application for refugee or asylum status pending, you can get temporary deferral of termination of assistance for an indefinite period of time until the immigration authorities make a final decision on the application.36 Sometimes it takes years for these applications to be resolved. In the meantime, you are eligible for full housing assistance, and your assistance should not be pro-rated.

Endnotes

35 42 U.S.C. § 1436a(c 24 C.F.R. §§ 5.518(b) and 5.520. A third option, continued full assistance, was available prior to late November, 1996. This applied when the household was already in a covered program as of June 19, 1995, the head of household or spouse had eligible status, and the household did not have any ineligible members except for the spouse, children, or parents of the head of household or spouse. If a housing agency or subsidized owner granted this status prior to Nov. 29, 1996, such households were "grandfathered" to continue to get full assistance. The option was eliminated, however, if the status was not granted by that date. See 24 C.F.R. § 5.518(a). If a family was found eligible for continued assistance but adds an ineligible new family member after Nov. 29, 1996, the family is not eligible for continued assistance at the full level, but may receive pro-rated assistance. See HUD Multifamily Occupancy Handbook 4350.3 REV-1, CHG-3 (June 2009), Chapter 3.

36 42 U.S.C. § 1436a(c)(1)(B)(iii 24 C.F.R. § 5.518(b)(3).

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