Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. The purpose of this section is
to provide uniform Department guidance on Section 401(a) of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1986 (PRWORA), which
provides that an alien who is not a Qualified Alien is not eligible for any
federal or state public benefit.
(b) Definitions. The words and terms in this
chapter shall have the meanings described in this subsection unless the context
clearly indicates otherwise. Capitalized words used herein have the meaning
assigned in the specific Chapters and Rules of this Title that govern the
program under which program eligibility is seeking to be determined, or
assigned by federal or state law.
(1)
Nonprofit Charitable Organization--An entity that is organized and operated for
purposes other than making gains or profits for the organization, its members
or its shareholders, and is precluded from distributing any gains or profits to
its members or shareholders; and is organized and operated for charitable
purposes.
(2) Public
Organization--An entity that is a Unit of Government or an organization
established by a Unit of Government.
(3) Qualified Alien--A person that is not a
U.S. Citizen or a U.S. National and is described at
8
U.S.C. §
1641(b) or
(c).
(4) State--The State of Texas or the
Department, as indicated by context.
(5) Subrecipient--An entity that receives
federal or state funds passed through the Department.
(6) Systematic Alien Verification for
Entitlements (SAVE)--Automated intergovernmental database that allows
authorized users to verify the immigration status of program applicants.
(c) Applicability for
Federal Funds.
(1) The determination of
whether a federal program, or activity type under a federal program, is a
federal public benefit for purposes of PRWORA is made by the federal agency
with administration of a program or activity, not by the Department. Only in
cases in which the federal agency has given clear interpretation that it
requires PRWORA to be applicable to a program or activity will this rule be
applied by the Department.
(2) The
requirements of this section are applicable to Subrecipients of federal funds
passed through the Department for which the federal program has made a
determination that the activity performed by the Subrecipient requires
compliance with PRWORA. However, certain exemptions under PRWORA may exist on a
case specific, or activity specific basis as further described in this
rule.
(d) Applicability
for State Funds. The Department has determined that State Housing Trust Funds
that are provided to a Subrecipient that is a Public Organization to be
distributed directly to individuals, are a state public benefit.
(e) No Applicable Exemptions under PRWORA. If
no exemptions under PRWORA are applicable to the Subrecipient or to the
activity type, as further detailed in this section, then the Subrecipient must
verify U.S. Citizen, U.S. National, or Qualified Alien status ("legal status")
using SAVE and evaluate eligibility using the rules for the applicable program
under this Title.
(f) Exemptions
Under PRWORA.
(1) In accordance with
8 U.S.C.
§
1642(d),
a Subrecipient that is a Nonprofit Charitable Organization receiving funds from
the Department for which the federal program or activity requirement is that a
household be verified for eligibility status, is not required to verify that an
individual is a U.S. Citizen, U.S. National, or Qualified Alien.
(2) For activities in the Low Income Home
Energy Assistance Program and the Department of Energy Weatherization Program
performed by a Nonprofit Charitable Organization (identified as a Private
Nonprofit Organization in the Subrecipient's Contract with the Department),
where the Department must ensure that an individual is a U.S. Citizen, U.S.
National, or Qualified Alien, a Subrecipient must ensure compliance with the
verification requirement through electing to proceed under subparagraph (A),
(B), or (C) of this paragraph. Subrecipients will submit in writing to the
Director of Community Affairs or his/her designee no later than six months
prior to the beginning of a Contract Term its election under one of the
subparagraphs in this subsection. For existing Subrecipients, an election made
under this subsection does not need to be restated annually, but will continue
from the election made in the prior year unless the Subrecipient notifies the
Department otherwise in writing before the deadline. For new Subrecipients, if
the election must be made with the Application or if there is no Application
before Contract execution. If the existing Subrecipient does not notify the
Department of the election in writing by the deadline but refuses to abide by
its election the Subrecipient will not be eligible to perform as a Subrecipient
in the program as further provided for in paragraph (3) of this subsection.
Failure by the Subrecipient to select an option by the deadline is good cause
for nonrenewal or termination of a Contract.
(A) Subject to affirmation by U.S. Health and
Human Services, the Subrecipient may voluntarily elect to request from the
household and transmit to the Department, or a party contracted by the
Department, sufficient information or documentation so that the Department is
able to ensure an individual is a U.S. Citizen, U.S. National, or Qualified
Alien.
(i) The Nonprofit Charitable
Organization must provide and maintain a sufficient method of electronic
transmittal system that allows for such information to be provided to the
Department or its contractor, and ensures the secure safekeeping of such paper
and/or electronic files, and receipt of subsequent response back from the
Department or its contracted party.
(ii) Upon receipt of the results of the
verification performed by the Department, or its contracted party, the
Nonprofit Charitable Organization must utilize those results in determining
household eligibility, benefits, income, or other programmatic designations as
required by applicable federal program guidance or as determined by other
program rules under this Title.
(B) The Subrecipient may voluntarily elect to
perform verifications through the SAVE system, as authorized through the
Department's access to such system.
(C) The Subrecipient may voluntarily elect to
procure an eligible qualified organization to perform such verifications on
their behalf, subject to Department approval.
(i) The Nonprofit Charitable Organization
and/or its procured provider must maintain sufficient evidence and
documentation that verification has taken place so that such verification can
be confirmed by the Department, and must ensure the secure safekeeping of such
paper and/or electronic files.
(ii)
Upon receipt of the results of the verification performed by the procured
provider, the Nonprofit Charitable Organization must utilize those results in
determining household eligibility, benefits, income, or other programmatic
designations as required by applicable federal program guidance or as
determined by other program rules under this
Title.
(3)
Other activities that do not require verification by Public Organizations or
Nonprofit Charitable Organizations are described in the August 5, 2016, HUD,
HHS, and DOJ Joint Letter Regarding Immigrant Access to Housing and
Services.
(g) The
Department may further describe a Subrecipient's responsibilities under PRWORA,
including but not limited to use of the SAVE system, in its Contract with the
Subrecipient. Nothing in this rule shall be construed to be a waiver,
ratification, or acceptance of noncompliant administration of a program prior
to the rule becoming effective.
(h)
A Subrecipient must establish that an individual is a U.S. Citizen, U.S.
National, or Qualified Alien using the documents deemed acceptable by the
Department, and which have been published on the Department's website. This
information may be updated by the Department from time to time, and highly
encourages Subrecipients or other concerned parties to contact the Department
if revisions are suggested.
