| (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. The definition does apply
to a vendor having been procured by the Department to determine eligibility
for federal or state funds and as otherwise reflected in the Contract.
(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 or acting on behalf of 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, Low Income Household Water and Wastewater 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.
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