Comments of EPIC to HUD on Verification of Eligible Status

COMMENTS OF THE ELECTRONIC PRIVACY INFORMATION CENTER

to

OFFICE OF THE SECRETARY

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD)

Housing and Community Development Act of 1980: Verification of Eligible Status

[Docket No. FR-6524-P-01, RIN 2501-AE16]

April 21, 2026

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By notice published on February 20, 2026, the Office of the Secretary, a component of the Department of Housing and Urban Development (HUD), proposes amendments to Section 214 of the Housing and Community Development Act of 1980.[1] Among other changes, the amendment would require the verification of U.S. citizenship or eligible immigration status of all applicants and recipients of assistance for covered HUD programs. Further, it proposes to remove the ability of non-U.S citizens in mixed-status families to choose to not contend eligibility for housing benefits.[2] Previously, choosing to not contend eligibility would allow for prorated assistance to the rest of the family; HUD now proposes to end that policy.[3]

The Electronic Privacy Information Center (EPIC) submits the following comments to urge HUD to rescind the Proposed Rule. At its core, the Proposed Rule presents a cartoonishly evil ‘Sophie’s Choice’ to some 80,000 people[4]: either be homeless or tear your family apart. The Proposed Rule is not only completely contrary to HUD’s mission “to create strong, sustainable, inclusive communities and quality affordable homes for all residents”[5] but also conflicts with the plain text of Section 214.[6]

Though the Proposed Rule’s deficiencies abound, EPIC’s comments focus on HUD’s plans to use the Department of Homeland Security (DHS)’s Systematic Alien Verification for Entitlements (SAVE ) system to verify U.S. citizenship or eligible immigration status. EPIC raises two points. First, that HUD’s Proposed Rule is arbitrary and capricious and fails to account for the documented accuracy issues with the SAVE system. Second, that HUD’s Proposed Rule violates the Privacy Act because HUD has failed to publicly notice an up-to-date Computer Matching Agreement or adhere to required privacy safeguards.

EPIC is a public interest research center in Washington, D.C. established in 1994 to focus public attention on emerging privacy and related human rights issues, and to protect privacy, the First Amendment, and constitutional values. EPIC has a particular interest in ensuring privacy, accountability, and the protection of civil liberties and civil rights with respect to the government’s use of personally identifiable information. EPIC has consistently advocated against the federal government’s unlawful consolidation and abuse of personal records.[7]

I. HUD’s Proposed Rule is arbitrary and capricious.

An agency rule is arbitrary and capricious if it “entirely failed to consider an important aspect of the problem,” or “offered an explanation for its decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, HUD’s implementation of the overhauled SAVE program to verify eligibility runs headlong into this problem: the Proposed Rule and Regulatory Analysis fail to consider SAVE’s accuracy or legality despite well-documented deficiencies in both. Further, the SAVE system that HUD purports to use is embroiled in litigation[8]—and for good reason. The overhauled SAVE system entirely fails to do what DHS and the administration intend for it do. Indeed, it is unlawful for the SAVE system to do what the administration intends. But HUD’s failure to mention—let alone meaningfully “consider” or “expla[in]” away—these concerns make its proposed rule arbitrary and capricious.

A. HUD’s Regulatory Analysis of SAVE’s accuracy is woefully inadequate.

HUD’s discussion of SAVE’s accuracy consists of a single sentence it which it claims that SAVE has a 1 percent error rate.[9] But that cherry-picked statistic completely misrepresents the relevant and current SAVE accuracy rate.

First, HUD’s accuracy claim relies on a 2017 report by the U.S. Government Accountability Office (GAO) entirely stripped of its context. Crucially, the overall error rate was not 1 percent; that 1 percent error rate only applied for SAVE status verifiers who manually researched an applicant’s immigration status during the additional verification phase.[10] But the majority of SAVE user agencies didnot complete additional verification steps.[11] Of the approximately 14 million additional verification responses that GAO studied, user agencies failed to follow through with additional verification steps nearly 60 percent of the time.[12] HUD’s reliance on the 1 percent statistic for its Regulatory Analysis is doubly dubious considering that same GAO report stated that USCIS did not have any sufficient controls to ensure agencies were completing the necessary additional verification steps.[13] The consequences of a faulty benefits determination in this case—losing your very home—are tremendous, and HUD does not come close to accounting for the impact of such determinations at scale.

Second, the accuracy statistic HUD cites in its Regulatory Analysis has no relation whatsoever to the SAVE system’s ability to accurately verify U.S. citizenship. Indeed, HUD provides no data as to the accuracy of SAVE’s ability to verify citizenship. That is understandable, as SAVE was never intended to be used to verify citizenship in the first place.[14] Still, public reporting of SAVE’s poor accuracy rates in verifying U.S. citizenship should have put HUD on notice that SAVE is not fit for the task at hand. For example, ProPublica and the Texas Tribune reported on February 13, 2026, that SAVE had error rates of at least 14% based on attempts to identify non-citizens in Denton County, Texas.[15] In Erath County, Texas, 66% identified were citizens; in Duval County Texas, 100%.[16] In St. Louis Missouri and Boone County, Missouri, more than half of the noncitizens identified were in fact citizens. Earlier reporting similarly flagged mistakes in SAVE’s ability to verify U.S. citizenship.[17] In response to the System of Records Notice (SORN) for the overhauled SAVE system—published only after DHS was sued—many commentators, including EPIC,[18] raised concerns about the accuracy issues inherent in SAVE’s ability to verify citizenship. HUD’s analysis fails to take any of this into account.

Moreover, HUD’s own unlawful attempts to use SAVE to verify U.S. citizenship have already brought to light the system’s accuracy problems. In January 2026, HUD sent an undated guidance letter to Public Housing Authorities (PHAs).[19] In the guidance letter, HUD directed PHAs to use a new Earned Income Verification (EIV) report that matched IMS/PIC data with SAVE data to verify citizenship.[20] HUD directed PHAs to review the EIV-SAVE report and verify citizenship within 30 days of the receipt.[21] Responding in a public letter, the National Association of Housing and Redevelopment Officials, the Public Housing Authorities Directors Association, and the MTW Collaborate (an industry group), called attention to the infeasibility of verifying citizenship using the EIV-SAVE report.[22] As the letter notes, not only was the guidance vague and issued without adherence to proper rulemaking procedures, but the EIV-SAVE report itself was also inaccurate.[23] Some agencies reported that “most of the people flagged in the agency’s report were clearly U.S. citizens or eligible immigrants who had submitted appropriate documentation.”[24] Others noted that the report flagged errors such as “No record found with SSA” despite having social security cards on file that showed up in other reports.[25]

Despite being informed of these issues, HUD makes no mention of them in its regulatory analysis. It has no reasoned explanation for its decision to adopt a faulty, error-ridden system to verify eligibility. HUD’s Regulatory Analysis itself seems to have been conducted on or before September 30, 2025.[26] But despite the mountain of evidence against SAVE that has surfaced in the intervening months, HUD entirely failed to reconsider its position. HUD does not articulate any “rational connection between the facts found and the choice made,” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962), rendering the Proposed Rule arbitrary and capricious.

B. HUD’s Regulatory Analysis fails to consider the dubious legal status of the SAVE system.

Whether a course of action is legal is a critical question in any reasoned agency analysis. But despite the fact that the SAVE system’s new citizenship lookup function is the subject of active litigation,[27] HUD entirely failed to heed that fact in the Proposed Rule. As that litigation underscores, Congress has not authorized the federal government to create a master registry of U.S. citizens. And the factual record developed in the case counsels restraint rather than rushing through a rulemaking that rests on a legally dubious system.

For example, as the Administrative Record produced during the litigation reflects, DHS’s own internal Privacy Threshold Analysis showed that there were “[s]hortfalls in data accuracy” for the SAVE system and that it “could cause incompletely or false results.”[28] Nevertheless, DHS publicly touted SAVE’s reliability.[29] DHS’s expansion of the SAVE system also relies on a novel and entirely unsupportable reading of 8 U.S.C. §1373[30] that is at the heart of the case. At the very least, such litigation should have prompted HUD to exercise caution before implementing a nationwide verification system that might render people homeless. But HUD did no such thing.

II. HUD’s Proposed Rule violates the Privacy Act because HUD has failed to publicly notice an up-to-date computer matching agreement or adhere to required safeguards.

HUD’s Proposed Rule makes no mention of any computer matching agreements that would authorize HUD to compare resident data with the overhauled SAVE system. Absent such an up-to-date agreement, HUD’s comparison of resident data violates the computer matching restriction of the Privacy Act.[31]

A matching program is “any computerized comparison of two or more automated systems of records or a system of records with non-Federal records for the purpose of verifying the eligibility of . . . applicants for, recipients or beneficiaries of . . . Federal benefit programs.”[32] Any comparison requires a written agreement specifying a variety of information, including the justification for the program, a description of the records that are to be matched, and procedures for verifying information.[33] Though HUD mentions the existence of a non-public Memorandum of Agreement between HUD and USCIS,[34] that acknowledgment alone is plainly insufficient under the Privacy Act and in light of the sweeping new role that the SAVE system plays in HUD’s adjudication of benefits.

 Prior to this rulemaking, any secondary verification of eligible immigration status required a manual search of DHS records.[35] Now, HUD proposes that agencies must use SAVE for the secondary verification process.[36] Such secondary matching uses “electronic process”[37] and determines crucial benefits entitlements: it is exactly the sort “computerized comparison” that the Privacy Act forbids without a computer matching agreement. HUD’s rulemaking is scant on the details, but the agency’s unlawful experiment matching IMS/PIC data with SAVE data suggests what HUD intends to do. And the SAVE system’s newfound ability to do “batch” comparisons raises further concerns still.[38] Even if HUD’s contemplated use of the SAVE program were legal and justifiable on the merits—which it is not—it cannot proceed without an up-to-date, publicly noticed matching agreement that addresses these points.

Nor do the problems end there. Under the Privacy Act, an agency may only collect personal information that is relevant and necessary for “a purpose of the agency required to be accomplished by statute or by executive order of the President.”[39] Any routine use of that information—such as a disclosure to another agency for benefits eligibility determinations—must be compatible with the purpose for which it was collected.[40] In addition, Section 214 explicitly requires that any system used to verify immigration status must “protect[] the individual’s privacy to the maximum degree possible.”[41]

By channeling vast amounts of personal data into DHS’s unlawfully expanded (and demonstrably inaccurate) SAVE system, HUD is flouting these restrictions and imposing grave privacy risks on housing applicants and recipients. As if to underscore the point, HUD’s Proposed Rule includes a revision to C.F.R. § 5.504(b) whereby HUD insists that “it is not responsible for the further use or transmission of the evidence or other information by DHS.”[42] HUD’s unlawful disregard for the privacy threat its Proposed Rule presents is yet another reason for the agency to abandon its course.

III. Conclusion

For the above reasons, HUD should promptly withdraw its Notice and rescind the Proposed Rule. HUD’s Regulatory Impact Analysis is deficient and the Proposed Rule violates the Privacy Act. For any questions, please contact [email protected].

Respectfully submitted,

/s/ Kabbas Azhar

EPIC EJW Fellow

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[1] Housing and Community Development Act of 1980: Verification of Eligible Status, 91 Fed. Reg. 8151, 8151 (Feb. 20, 2026) [hereinafter Proposed Rule], https://www.federalregister.gov/documents/2026/02/20/2026-03405/housing-and-community-development-act-of-1980-verification-of-eligible-status.

[2] Id.

[3] Id.

[4] In its regulatory analysis, HUD contemplates that mixed-status families with children (80% of all mixed-status families), will likely leave HUD housing to stay together. And in cases where it is an adult who is ineligible, perhaps it might just be them that leaves instead of the whole. HUD, 6524-P-01 RIA Verification 1-28-26 (1), at 13 (Sep. 30, 2025), LINK [hereinafter Regulatory Analysis].

[5] HUD, Multifamily Residents (last visited Apr. 20, 2026), https://www.hud.gov/hud-partners/multifamily-residents.

[6] See 42 U.S.C. §1436(a)(i)(1) (providing that no individual or family shall receive final assistance prior to verification of eligibility of “at least the individual or one family member,” not all family members like HUD is attempting here).

[7] See EPIC, EPIC’s Fight Against the Administration’s Privacy Abuses, https://epic.org/issues/democracy-free-speech/fighting-federal-data-abuses/.

[8] See League of Woman Voters v. DHS, No. 1:25-cv-03501 (D.D.C. filed Sep. 30, 2025).

[9] Regulatory Analysis at 29.

[10] U.S. Gov’t Accountability Off., Rep. No. GAO-17-204, Immigration Status Verification for Benefit: Actions Needed to Improve Effectiveness and Oversight at 16 (Mar. 2017).

[11] Id. at 17.

[12] Id. at 18.

[13] Id. at 17.

[14] See Immigration Reform Control Act of 1986, Pub. L. No. 99-603, title I, §121(c)(1), 100 Stat. 3359, 3391 (1986), codified at 42 U.S.C. §1320b-7 note.

[15] Jen Fifield & Zach Despart, A federal tool to check voter citizenship keeps making mistakes. It led to confusion in Texas., ProPublica & Texas Tribune (Feb. 13, 2026), https://www.texastribune.org/2026/02/13/save-voter-citizenship-tool-mistakes-confusion/.

[16] Id.

[17] Jude Joffe-Block, Trump’s SAVE tool is looking for noncitizen voters. But it’s flagging U.S. citizens too, NPR (Dec. 10, 2025), https://www.npr.org/2025/12/10/nx-s1-5588384/save-voting-data-us-citizens.

[18] EPIC and 15 organizations, Comments to the Dep’t of Homeland Sec. on Systems of Record Notice, Department of Homeland Security/U.S. Citizenship and Immigration Services (USCIS)-004 Systematic Alien Verification for Entitlements Program (SAVE), USCIS-2025-0337 (Dec. 1, 2025) (attached as Exhibit).

[19] Letter from Benjamin R. Hobbs, Assistant Sec’y, Off. Pub. & Indian Hous., to PHA Executive Directors (Jan. 2026), https://www.hud.gov/sites/default/files/PIH/documents/PHA-Letter-on-EIV-Report.pdf.

[20] Id.

[21] Id.

[22] Letter from Mark Thiele, CEO, Nat’l Ass’n of Hous. and Redevelopment Offs., Tim Kaiser, Exec. Dir., Pub. Hous. Auths. Dir. Ass’n, & Johsh Meehan, President, MTW Collaborative to Benjamin Hobbs, Assistant Sec’y, Off. Pub. & Indian Hous., HUD (Feb. 13, 2026), https://www.nahro.org/wp-content/uploads/2026/02/EIV-SAVE-Letter-to-HUD-2-13-2026-final.pdf.

[23] See id.

[24] Id. at 3.

[25] Id. at 4.

[26] Regulatory Analysis at 1.

[27] See League of Women Voters, No. 1:25-cv-03501.

[28] Dep’t of Homeland Security Administrative Record at 260, 302, League of Women Voters, No. 1:25-cv-03501 (D.D.C. filed Sept. 30, 2025), ECF no. 65.

[29] Id. at 449, 491.

[30] Id. at 1361, 1479.

[31] See 5 U.S.C. § 522a(o).

[32] 5 U.S.C. § 522(a)(8)(A)(i)(I).

[33] 5 U.S.C. §§ 522(a)(o)(1)(A)-(J).

[34] Regulatory Analysis at 7.

[35] 24 C.F.R. §5.512(d).

[36] Proposed Rule at 8158.

[37] Id. at 8159.

[38] See SAVE User Reference Guide, 8.2 (last visited Apr. 21, 2026), https://www.uscis.gov/save/current-user-agencies/guidance/save-user-reference-guide/8-case-creation/82-how-to-submit-cases-in-bulk.

[39] 5 U.S.C. § 552a(e)(1).

[40] 5 U.S.C. § 552a(7).

[41] 42 U.S.C. § 1436a(d)(3)(B).

[42] Proposed Rule at 8166.