President Biden Removed Harmful Housing Policies. More Advocacy is Needed.
The Biden Administration has taken important steps to rescind, vacate, or withdraw proposed and finalized housing regulations that were intended to harm immigrant families. While these latest actions have been essential to ensure that families have access to these critical housing programs, more has to be done to counteract the significant "chilling effect" caused by the previous administration's anti-immigrant rhetoric.
Keep Families Together urges advocate to remain engaged and prepared to fight against hateful policies that hurt immigrant families. Examples of these policies are below, with action opportunities within each section.
The Trump Administration Attacked Housing Assistance for Immigrant Families.
The Trump Administration’s hostility towards low-income immigrants and immigrants of color fueled its immigration policies. While many of these attacks were highly publicized, the former President attempted to covertly go around Congress and dramatically change U.S. immigration policy by creating anti-immigrant regulations through federal agencies.
A prime example of this strategy was the Trump administration’s efforts to deter immigrants and their families from accessing federal housing assistance. Several agencies have proposed or finalized rules that further restrict immigrant eligibility for certain housing programs as well as threaten some immigrants with denials of green cards if they receive – or could theoretically receive – these benefits.
Blaming struggling families will not fix the affordable housing crisis. The real issue is the lack of sufficient funding to ensure that every family who is eligible for federal housing assistance has access to one of the most basic human rights—a safe, accessible, and affordable place to call home.
The former President attempted to covertly go around Congress and dramatically change U.S. immigration policy by creating anti-immigrant regulations through federal agencies.
Housing & Urban Development: Mixed-Status Families Rule
On May 10, 2019, the U.S. Department of Housing and Urban Development (HUD) published a proposed rule that would prohibit “mixed-status" families from living in public and other subsidized housing. Mixed-status families are households that include both members who are eligible and ineligible for housing assistance based on their citizenship/immigration status. Federal statute and regulations allow families to live together in subsidized housing even if one family member is ineligible so long as the housing subsidy is decreased to exclude the ineligible person from the assistance. Importantly, just because a household member is an “ineligible” immigrant, it doesn’t mean that they are undocumented. Immigrants can have legal status and still not be eligible for public housing and Section 8 programs.
The rule would further require all residents under the age of 62 to have their immigration status screened through the Systematic Alien Verification for Entitlements Program (SAVE), which is operated by the U.S. Department of Homeland Security. Families with members who are deemed “ineligible” will be evicted from subsidized housing after 18 months or sooner.
HUD's proposed rule would force families of mixed immigration status to break up to receive housing assistance, to forego assistance altogether, or face termination from the programs. This rule will directly impact thousands of immigrant families’ access to housing and will have a chilling effect that puts thousands more at risk of homelessness. HUD’s own analysis shows that more than 55,000 children, who are either U.S. citizens or otherwise eligible to receive housing benefits, could face eviction under the proposed rule. The proposed rule will continue to engender fear and chaos among immigrants and their families.
While HUD claims the agency proposed the rule out of concern for long waitlists, this rule will reduce the number of subsidies provided to families. By getting rid of mixed-status families, HUD's analysis shows that millions of new dollars would have to be provided to families with all eligible members. To make up for the higher costs, HUD would be forced to reduce the quality and quantity of assisted housing.
The proposed rule will be administratively burdensome to implement for housing authorities and private owners of Section 8-assisted properties. Housing providers will be forced to focus their resources on terminating and evicting families, which will divert resources away from property maintenance and employment-related resident services they already provide. These additional burdens could deter private housing providers from participating in the Section 8 programs, worsening the affordable housing crisis.
The public comment period for this rule ended July 9, 2019. Thanks to your advocacy, more than 30,000 individuals and organizations submitted comments on the proposed HUD rule. HUD is now drafting a final rule and must respond to all the submitted comments. The opposition to the proposal from individuals, organizations, and elected officials has been overwhelming and historic. The last time a HUD proposal garnered significant public attention resulted in just over 1,000 public comments.
HUD published on April 2 in the Federal Register a rule, “Housing and Community Development Act of 1980: Verification of Eligible Status; Withdrawal,” that will remove the previous administration’s harmful and misguided proposed “mixed-status” rule from HUD’s upcoming Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions. The proposed rules were withdrawn in accordance with President Biden's directives in the January 20, 2021 memorandum entitled "Regulatory Freeze Pending Review" and Executive Orders entitled "Advancing Racial Equity and Support for Underserved Communities Through the Federal Government" and "Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans". HUD will continue to use the guidance under Section 214 of the “Housing and Community Development Act of 1980.”
For more information, please read the press statement from NHLP under the News section.
Department of Agriculture: Rural Housing Service Mixed-Status Families Rule
The U.S. Department of Agriculture’s Rural Housing Service (RHS) is currently developing a proposed rule on citizenship requirements for the agency's multifamily housing programs. The proposed rule will likely prohibit mixed-status immigrant families from receiving housing assistance from some RHS programs, including the Rural Development (RD) Voucher program and rental assistance for the Section 515 and Section 514/516 programs. The Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) cleared USDA’s proposed rule that would have to prohibited mixed-immigration status families from living in RHS's federally subsidized housing. This rule was never proposed to the Federal Register and it is likely to be withdrawn in accordance to President Biden's Executive Orders.
Department of Homeland Security: Public Charge Rule
On August 14, 2019, the U.S. Department of Homeland Security (DHS) officially published the final version of their “Rule on Inadmissibility on Public Charge Grounds” (Public Charge Rule). This Public Charge Rule makes it easier for DHS to declare certain immigrants to be a "public charge," which can result in someone being denied admission into the country or not receiving a green card. Under the Public Charge Rule, an individual may be deemed a public charge because they use or might use in the future vital health, nutrition, or housing assistance programs. Importantly, the Public Charge Rule makes it easier for certain immigrants to be deemed a public charge – even if they have never received federal benefits – based on factors such as income, age, health, and education level.
If not blocked in court, the Public Charge Rule will drastically change immigration policy by expanding the types of benefits that DHS considers in public charge determinations to include benefits such as Medicaid, SNAP, public housing, and Section 8 housing subsidies.
The publication of a proposed version of the rule last October led many families to drop out of critical food and nutrition programs for their children out of fear of risking future green card status. This chilling effect is poised to impact hundreds of thousands of immigrant households that depend on these programs for survival and economic success in their adopted country.
The Protecting Immigrant Families Campaign of over 1,500 organizations nationwide, including both the National Housing Law Project and the National Low Income Housing Coalition, helped organize opposition to the proposed rule and encouraged people to submit comments during the public comment period, which closed December of 2018. Over 266,000 comments were submitted during the 60-day comment period, with the vast majority opposing the proposed rule.
The Public Charge Rule is set to go into effect on October 15, 2019. Partners from the Protecting Immigrant Families Campaign as well as several State Attorneys General are pursuing litigation to prevent this disastrous Public Charge Rule from going into effect. In support of these litigation efforts, the National Housing Law Project along with the Food Research & Action Center, Center for Law and Social Policy and other groups filed an amicus brief in five cases opposing the Trump Administration’s Public Charge Rule. The National Low Income Housing Coalition was one of the many groups that signed on to the amicus to show their support. The amicus brief argues that the Public Charge Rule will decrease immigrants’ participation in crucial public benefit programs that promote self-sufficiency, which will lead to greater housing instability, homelessness, hunger, and illness. The brief was drafted and filed with the assistance of the law firm of Keker, Van Nest & Peters LLP.
President Joe Biden signed the Executive Order “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” on February 2, 2021 which included directives to relevant agencies to review and take action on the Public Charge Rule.
In the EO regarding public charge, Section 4 (Immediate Review of Agency Actions on Public Charge Inadmissibility) orders the secretary of state, attorney general, secretary of Homeland Secretary, and heads of other relevant agencies to review all agency actions related to the implementation of the Public Charge rule and examine the effects of the previous administration’s harmful changes to the rule. The EO further orders that they consult with the heads of relevant agencies, including the secretary of Agriculture, secretary of Health and Human Services, and secretary of HUD in considering the effects and implications of public charge policies.
The Departments of State, Justice, and Homeland Security are ordered to submit a report to the president within 60 days identifying appropriate agency actions to address concerns about the current public charge policy’s effect on the integrity of the nation’s immigration system and public health, along with recommended steps agencies can take to communicate current public charge policies and proposed changes to reduce fear and confusion among impacted communities.
The U.S. Citizenship and Immigration Services (USCIS), a division of DHS, published the final rule, “Inadmissibility on Public Charge Grounds; Implementation of Vacatur,” to the Federal Register on March 15, 2021, removing regulatory language from the harmful 2019 Public Charge Rule from the previous administration. Along with removing the 2019 Public Charge Rule language, immigrant families applying for admission to the country, Lawful Permanent Resident, or for extension of nonimmigrant stay or change no longer need to provide information or evidence that is solely related to the 2019 Public Charge Rule. This includes information provided on Form I-944 (Declaration of Self-Sufficiency), which has also been discontinued in the final rule. The final rule was the last step in implementing the vacatur made by the Supreme Court and DHS/USCIS stopped applying the 2019 Public Charge Rule on March 9, 2021.
The Biden Administration has recently issued an Advanced Notice of Proposed Rulemaking (ANPRM) on Public Chage rule titled "Public Charge Ground of Inadmissibility". This is the first of three stages in the larger reform process that would ultimately lead us to a final rule. Keep Families Together Campaign and the Protecting Immigrant Families are encouraging advocates to submit a comment letter in response to one or more categories in the Request for Information section of the ANPRM: Purpose and Definititon of Public Charge, Prospective Nature of the Public Charge Inadmissibility Determination, Statutory Factors, Affidavit of Support Under Section 213A of the INA, Other Factors to Consider, Public Benefits Considered, Previous Rulemaking Efforts, Bond and Bond Procedures, and Specific Questions for State, Territorial, Local, and Tribal Benefit Granting Agencies and Nonprofit Organizations.
We encourage organizations to sign-on to the Protecting Immigrant Families comment letter. Housing and homelessness advocates are also encourage to use the Keep Families Together's template to encourage DHS to not include housing or homelessness assistance programs in the new public charge rule. Instructions on how to submit your comments and guidance for drafting can be found in the document.
To learn more about the housing impact of the Public Charge Rule, visit NHLP’s Public Charge Resource page. To learn about the rule more generally, please visit the Protecting Immigrant Families. what Advocates Need to Know Now Fact Sheet.
Department of Justice: Public Charge Rule on Deportation
The U.S. Department of Justice (DOJ) has drafted a proposed rule related to deportation on public charge grounds. This is a distinct rule from the U.S. Department of Homeland Security (DHS) public charge rule on inadmissibility that was finalized on August 14, 2019. While the proposed rule has not yet been officially published, DOJ has sent the proposed rule to the U.S. Office of Management and Budget (OMB), and it is expected to be published in the near future.
The DOJ Public Charge rule was never proposed nor published in the Federal Register.
To learn more about the DOJ’s Public Charge Rule please see this fact sheet from the Protecting Immigrant Families Campaign.