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Illegal Aliens and the Uniform Act, Questions and Answers on Public Law 105-117

August 9, 1999

A. General | B. Process-Related | C. Certification
D. Eligibility | E. Residential Displacements | F. Business Displacements | Sample Forms

A. General

Question 105-117_ 1: What is the purpose of Public Law 105-117?
Answer: The purpose of P.L. 105-117 is to prohibit, with certain limited exceptions, the provision of relocation payments or assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, to persons not lawfully present in the United States

Question 105-117_ 2: When did the law become effective?
Answer: On the day it was signed into law by the President, November 21, 1997. This position was clearly conveyed in Cindy Burbank's memorandum to the former Regional offices and her letter to the other Federal agencies both dated February 23, 1998. The final rule was published in the Federal Register on February 12, 1999.

Question 105-117_3: Are moving expense payments covered by the law's prohibition on benefits?
Answer: Yes.

Question 105-117_4: May a displacing agency choose to do nothing to implement the 1997 amendments and the implementing regulation?
Answer: The law and the regulation require displacing agencies to take some implementing action or risk losing Federal participation in the cost of relocation payments or assistance. The regulation provides minimal requirements for complying.

Question 105-117_5: What is the impact if State law does not authorize compliance with the 1997 amendments (and subsequent final rule)?
Answer: Each state agency will have to determine if the lack of authorization prevents it from complying. If an agency determines that it cannot comply, then Federal funds will not be able to participate in the cost of any relocation payments or assistance.

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B. Process-Related

Question 105-117_6: When should potential displaced persons be informed of the requirements of P.L. 105-117?
Answer: Information concerning the requirements of P.L. 105-117 should be provided to potential displaced persons no later than the provision of the General Relocation Notice (49 CFR 24.203(a)).

Question 105-117_7: When should the displacing agency seek the certification from the displaced person?
Answer: As early as the provision of advisory assistance and no later than the application for benefits (claim).

Question 105-117_8: What is the role of the INS in the process outlined under the final rule?
Answer: The INS maintains a register of aliens who are lawfully in the U.S. and will serve as a potential source of verification for persons who certify that they are aliens lawfully present in the U.S. If an agency questions such a certification, it must check the residency status of the person with the INS before denying benefits.

Question 105-117_9: How do I contact the INS?
Answer: The November 17, 1997, Federal Register contains a list of local INS offices. This list may be found at 62 FR 61350. If you are unable to contact the INS, you may contact FHWA (Ron Fannin at 202-366-2042 or Reid Alsop at 202-366-1371) to obtain the listing for the office nearest you.

Question 105-117_10: Does P.L. 105-117, the regulation, or another Federal statute require the displacing agency to report to the INS any alien it believes to be present in the U.S. illegally?
Answer: No. The obligations of a displacing agency under P.L. 105-117 and the final rule extend only to assuring that aliens not lawfully present in the U.S. do not receive Uniform Act relocation payments and assistance. In addition, we asked the INS if another Federal statute requires the reporting of a person thought to be an illegal alien and they have told us that there is no such obligation.

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C. Certification

Question 105-117_11: Must every person seeking benefits under the Uniform Act certify as to residency status?
Answer: Yes.

Question 105-117_12: What form may the certification take?
Answer: In keeping with our objective of minimizing prescriptive Federal requirements, we have not required a particular form for the certification. As noted in the NPRM, we believe it would be acceptable for an agency to incorporate the certification into its existing claim forms (for example, by adding a group of boxes to be checked), if the agency determines that this approach is appropriate to its process. However, in response to requests from a number of States, we have developed two sample certification forms which may be used or not, as suits a State's needs. Those sample forms are attached following the Qs and As.

Questions 105-117_13: Three related questions:
a. What documentation should be required in support of the certification?
b. What should be the nature of a displacing agency's review process?
c. What findings must an agency make?

Answer: We believe that documentation standards, the nature of a displacing agency's review process, and the question of required findings are matters best left to the displacing agency to determine, except that all processes and criteria related to this rule must be nondiscriminatory.

Question 105-117_14: What might constitute ''reason to believe'' a certification may be invalid?
Answer: The determination of what constitutes ''reason to believe'' a certification may be invalid should be based on the judgment of the displacing agency, relying on the agency staff's contacts with the displaced person, their knowledge of the affected geographic area, contacts with neighbors and neighborhood institutions, and various other factors specific to each situation.

Question 105-117_15: Are there certain circumstances which automatically would require documentation for a certification?
Answer: Not to our knowledge. The commenter who raised this issue in response to the Notice of Proposed Rulemaking did not provide any examples of such circumstances and we have been unable to identify any. In particular, we question whether a policy which determined that a particular situation(s) always required documentation could be implemented in a truly nondiscriminatory manner. We continue to think that each case must be handled on an individual basis.

Question 105-117-16: Who may sign the certification in the case of a family that is to be displaced?
Answer: We believe that a head of household may sign the certification, just as a head of household may sign the claim form for a relocation payment, and have so provided in new section 24.208(a) (2). However, unlike an individual's certification, a head of household's certification also would certify as to the residency status of other family members. Agencies should be careful to design their certification materials to be sure they ask for a response appropriate to the displaced person's situation.

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D. Eligibility

Question 105-117_17: What is the meaning of the term " exceptional and extremely unusual hardship?"
Answer: The final rule includes a definition of the phrase "exceptional and extremely unusual hardship," which focuses on significant and demonstrable impacts on health, safety, or family cohesion. This phrase is intended to allow judgement on the part of the displacing agency and does not lend itself to an absolute standard applicable in all situations.

Question 105-117_18: To whom does the "hardship exemption" extend?
Answer: When considering whether such an exemption is appropriate, a displacing agency may examine only the impact on an alien's spouse, parent, or child who is a citizen or lawful resident alien.

Question 105-117_19: What is a spouse?
Answer: In determining who is a spouse, we expect displacing agencies to use the definition of that term under State or other applicable law.

Question 105-117_20: What documentation is required to support a claim of hardship?
Answer: In keeping with the principle of allowing displacing agencies maximum reasonable discretion, we believe the question of what documentation is required to support a claim of hardship is one best left to the displacing agency, as long as it is handled in a nondiscriminatory manner.

Question 105-117_21: May income level be a factor in the consideration of "hardship."
Answer: We believe the amendments contemplate a standard of hardship involving more than the loss of relocation payments and/or assistance alone which, after all, is the basic thrust of the amendments. Thus, we believe that income alone (for example, measured as a percentage of income spent on housing), would not make the denial of benefits an "exceptional and extremely unusual hardship" and qualify for a hardship exemption.

Qestion 105-117_22: When may an agency deny eligibility for benefits?
Answer: Under this rule, a displacing agency may deny eligibility only if: (1) a person fails to provide the required certification; or (2) the agency determines that a person's certification is invalid, based on a fair and nondiscriminatory review of an alien's documentation or other information that the agency considers reliable and appropriate, including (for persons claiming to be lawfully present aliens) review by the Immigration and Naturalization Service (INS); and (3) the agency concludes that denial would not result in "exceptional and extremely unusual hardship."

Question 105-117_23: Does the answer in Question 22 mean that failure to certify can result in a denial of Uniform Act benefits without INS verification?
Answer: Yes, provided the displacing agency is satisfied that the failure to certify constitutes a refusal or inability to certify and is not merely an oversight, misunderstanding, or other mistake.

Question 105-117_24: May a denial of Uniform Act benefits under the 1997 amendments be appealed?
Answer Yes. Any person who is denied eligibility may utilize the existing appeals procedure, described in 49 CFR 24.10.

Question 105-117_25: How do the 1997 Uniform Act amendments apply to on-going relocation cases in which displacement occurred after the passage of the amendments (November 21, 1997) but before the effective date of the final rule (March 15, 1999)?
Answer: The general principle of the 1997 amendments is that, with certain limited exceptions, no relocation payment or assistance under the Uniform Act should be provided to a displaced person by a displacing agency if the agency is aware that the residency status of an alien is unlawful. FHWA notified its field offices and the other Federal agencies whose programs are covered by the Uniform Act of the law's requirements and effect on February 23, 1998. Allowing a reasonable amount of time for an agency to adapt its processes to the new requirements, FHWA believes that no payment or assistance should have been provided to a person known to be in unlawful residency status who was displaced after June 1, 1998.

Between November 21, 1997, and June 1, 1998, for payments which already had been made, or, in the case of installment payments where an installment already had been paid, FHWA does not believe it is necessary to seek repayment or to terminate the remaining installments.

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E. Residential Displacements

Question 105-117_26: How should payments be computed if some members of a displaced family are present lawfully but others are present unlawfully?
Answer: There are two different computation methods, one for moving expenses and one for replacement housing payments (RHP). For moving expenses, the payment is to be based on the proportion of lawful occupants to the total number of occupants. For example, if four out of five members of a family to be displaced are lawfully present, the proportion of lawful occupants is 80 percent and that percentage is to be applied against the moving expenses payment that otherwise would have been received.

For the RHP, the unlawful occupants are not counted as a part of the family and its size is reduced accordingly. Thus a family of five, one of whom is a person not lawfully present in the U.S., would be counted as a family of four. The comparable for the family would reflect the makeup of the remaining four persons and the RHP would be computed accordingly.

A "pro rata" approach to an RHP calculation disregarding alien status for comparability determination and applying a percentage to the RHP amount based upon the number of legal household members divided by the total number of household members is not permitted (consistent with Public Law 105-117).

The "pro rata" approach may result in a higher RHP eligibility than the displaced persons would otherwise be eligible to receive. The "pro rata" approach of providing a percentage of the calculated eligibility is contrary to the requirements of the Uniform Act and 49 CFR Part 24.
Example:

Household of seven (including one illegal alien individually occupying one bedroom.) Displacement dwelling - 4 BR unit, with rent/utilities of $1200/month Housing requirements for all lawful occupants (six) is a 3 BR unit Comparable dwelling 3 BR unit with rent/utilities of $1300/month Calculation of RHP under regulations (illegal alien excluded) $1300 (comparable) - $1200 (displacement unit) = $100 RHP x 42 months = $4,200 RHP

Question 105-117_27: If a person who is a member of a family being displaced is not eligible for (does not receive) Uniform Act benefits because he or she is in the United States unlawfully, is that person's income excluded from the computation of family income?
Answer: No, the person's income is still counted unless the displacing agency is certain that the ineligible person will not continue to reside with the family. To exclude the ineligible person's income would result in a windfall by providing a higher relocation payment because a family member was not present lawfully in the United States. This is the result which led to the 1997 amendments in the first place.

Question 105-117_28: What is the effect of P.L. 105-117 on installment payments where one or more installments remain to be paid?
Answer: As noted under Question 105-117_25, in the case of installment payments where an installment already had been paid, FHWA does not believe it is necessary to seek repayment or to terminate the remaining installments.

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F. Business Displacements

Question 105-117_29: Does the prohibition on benefits in Public Law 105-117 apply to businesses?
Answer: Yes. It seems clear that it does since the term ''person'' used in Public Law 105-117 is defined broadly in the Uniform Act so as to include businesses (as well as farms and nonprofit organizations). We believe the Congress intended to prevent the receipt of Uniform Act benefits by any alien not legally present in the U.S. and not meeting the exception requirements previously discussed under section D. (Eligibility).

We also believe that the prohibition on benefits must be applied differently to the differing "ownership" situations found in, for example, a sole proprietorship, a partnership, or a corporation.

Question 105-117_30: How are the differing ownership situations referred to in Question 105-117_29 to be treated?
Answer: As in the case of residential displacees, we think the answer lies in looking at the nature of the entity to be displaced. Since a sole proprietorship involves only one person, the eligibility of the business is synonymous with the residency status of its proprietor.

At the other end of the spectrum, it is our view that a corporation, as a legal person established pursuant to State law, need only certify that it is authorized to conduct business in the United States.

For partnerships or other associations that have more than one owner but are not incorporated, we believe that the certification must be designed to elicit a response reflective of the status of all of the owners. If any of the owners are not eligible, no relocation payments may be made to such ineligible persons. Finally, any relocation payments for which the business would otherwise be eligible should be reduced by a percentage based on the proportion of eligible owners to the total number of owners. For example, if four out of five owners of a business to be displaced are lawfully present, the proportion of lawful occupants is 80 percent and that percentage is to be applied against the relocation payment(s) that otherwise would have been received.

We have adopted a similar approach to mixed eligibility in residential situations and have added clarifying language in Sec. 24.208(c) of the final rule.

Question 105-117_31: The law prohibits payments to " persons not lawfully present." Does this mean that the owner(s) of a business must be present in the United States to be eligible for Uniform Act benefits?
Answer: No. The focus is on the displaced person's unlawful residency status, not his or her presence in the United States. If the owner of a business located in the U.S. was, for example, a resident of Great Britain and the business was displaced by a Federal or federally-assisted program or project, the owner's residency would have no effect on eligibility for Uniform Act benefits.

Updated: 09/05/2014
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