What You Can and Can't Do When Checking Applicants' Immigration Status

This month, we are going to update you on an important topic: screening applicants based on their citizenship and immigration status. Federal fair housing law hasn't changed in this area, but you need to know about a number of significant developments in the law on the state and local levels, according to Atlanta attorney Robin Hein, who specializes in fair housing.

In the vacuum left by Congress's failure to adopt comprehensive immigration reform, state governments across the country have adopted, or at least considered, legislation related to immigration. Last year, more than 1,400 immigration-related measures were introduced in legislatures in all 50 states as of July 2, 2007, according to the National Conference of State Legislatures. More than 180 became law in 43 states.

Some of those measures affect the rental housing industry. In October 2007, California passed legislation that bans owners from asking about an applicant's citizenship or immigration status. In Tennessee, a bill was introduced that, if passed, will ban real estate professionals from doing business with illegal immigrants. We will update you on the progress of that bill (Senate Bill 1343), which has been put on hold until February 2008.

Meanwhile, a number of local governments passed their own immigration verification rules for rental housing. The resulting lawsuits have raised constitutional and civil rights questions, only some of which have been answered by the courts.

In this month's issue, we will give you six rules to guide you in developing and implementing your policy relating to screening applicants for their citizenship or immigration status under fair housing law. At the end of our lesson, you can take the Coach's Quiz to see how much you have learned. Finally, after reading about state and local developments in our Legal Update (see pp. 5-6), you'll want to consult an attorney in your area to make sure you comply with these new laws.

WHAT DOES THE LAW SAY?

Under the Fair Housing Act (FHA), owners and managers can't refuse to rent to an applicant based on his or her race, color, national origin, sex, familial status, disability, or religion. Under the FHA, screening applicants based on citizenship or immigration status could raise questions about discrimination based on race, color, religion, or national origin.

When screening applicants, you won't run afoul of the FHA as long as you screen all applicants, regardless of those protected characteristics, for their citizenship or immigration status, according to the Department of Housing and Urban Development (HUD) in its 2003 memo, “Response to concerns about housing security following September 11, 2001.” In the aftermath of the terrorist attacks, HUD reported receiving inquiries from owners and property managers across the country about the legality of screening housing applicants on the basis of their citizenship status.

At the same time, HUD noted, people who were—or were perceived to be—Muslim or of Middle Eastern or South Asian descent reported increased discrimination and harassment, sometimes in connection with their housing.

The HUD memo states that the FHA does not prohibit discrimination based solely on a person's citizenship status. Therefore, asking applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the FHA.

HUD noted that such measures have been used for many years in screening applicants for federally assisted housing. HUD cited regulations for the types of documentation that may be required, and the process for collecting and verifying such documents. HUD noted that the procedures were uniformly applied to every applicant for federally assisted housing.

HUD's memo warns owners considering implementing such procedures to ensure they are carried out in the same way for all applicants. For example, an owner may not require paperwork to prove immigration status from an applicant from the Middle East, but not ask the same thing of a European applicant. The FHA prohibits owners or property managers from expressing any preferences for or against one country or citizenship over another, said Hein.

6 RULES FOR SCREENING APPLICANTS BASED ON CITIZENSHIP OR IMMIGRATION STATUS

Rule #1: Decide Whether to Screen All Applicants Based on Legal Status

Federal law does not prohibit owners from screening applicants based on their citizenship or immigration status, according to Hein, who recommends asking all applicants whether they are either U.S. citizens or have a legal right to live or work in the United States. It's not a good idea to refuse to rent to someone who is not a U.S. citizen but is otherwise lawfully here, he says. While the FHA doesn't include citizenship among the protected characteristics, Hein warns that such a practice may run afoul of other federal civil rights laws.

However, with the exception of federally assisted housing, no federal law requires owners or property managers of market-rate rental housing to ask applicants about their citizenship or immigration status. As a business decision, Hein says that owners could set a policy to rent to anyone who meets their community's rental qualifications—such as income, rental history, credit, and criminal background—without respect to citizenship or immigration status, unless, of course, the apartment community is in a jurisdiction such as Hazelton, Pa., or Cherokee County, Ga. (See Rule #6.)

Rule #2: Decide Whether to Reject All Applicants in United States Illegally

No federal law requires you to rent to anyone who is not lawfully in the United States, so you may reject the application of someone who says he is in the country illegally. As long as your rejection is a business decision based on the applicant's citizenship or immigration status, and not a ruse to reject him for an illegal reason—for example, race, color, religion, or national origin—you haven't violated fair housing law.

Rule #3: Decide Whether to Require Proof of Applicants’ Legal Right to Be in United States

If you ask applicants about their citizenship or immigration status, you don't have to take them at their word—you may ask for documentary proof of their legal right to be in the United States, as long as such proof is required of all applicants. Therefore, if you require applicants to provide documentation, you must apply the rule in a nondiscriminatory manner: You can't decide—based on an applicant's appearance, accent, or apparel—whether to ask him to show you his papers.

You could ask to see applicants’ passports or other immigration papers, but you aren't required to do so. Although federal law requires employers to verify employees’ citizenship or immigration status through the I-9 process, there is no federal law requiring owners to verify applicants’ status.

Hein recommends asking applicants to provide either a Social Security number (SSN) or an individual tax identification number (ITIN). An ITIN is issued by the Internal Revenue Service to anyone who is required to file a U.S. income tax return, but who is not otherwise eligible for an SSN.

Owners have legitimate reasons for requiring applicants to furnish those numbers, which are used to check applicants’ credit. Hein warns against insisting on only SSNs, because of a potentially discriminatory impact on certain noncitizens (for example, students) who are in the country legally, but who can't get SSNs, because they are not allowed to work in the United States.

SSNs and ITINs are key identifiers for running background checks on applicants, notes Jay Harris, vice president of Business Services at First Advantage SafeRent. But the lack of an SSN or ITIN doesn't have to be a reason to reject an applicant, because a credit or background check may still be performed without those numbers. Screening will reveal data—including criminal history, credit, and eviction records—about even those in the country unlawfully, says Harris.

Rule #4: Decide Whether to Reject All Applicants Without Required Documents

If an applicant can't produce the documentation you require, you are legally allowed to reject his or her application. If you do, just make sure you reject the applications of all applicants who can't produce the documents you require. If you reject some applications without accompanying documentation and accept others, you'll open yourself up to fair housing complaints.

Owners are justified in requiring applicants to demonstrate their ability to pay rent, and other factors that establish qualification as a resident, according to Boston-based fair housing attorney Henry Korman. He doesn't necessarily favor the idea of requiring proof of an applicant's citizenship or immigration status as a policy matter.

Nevertheless, he recommends that owners who require proof of an applicant's immigration status should link the documentation requirement to a reasonable qualification for tenancy, such as proof of the ability to pay the rent. For example, if applicants lack documentation to allow owners to do a credit check, owners have a legal right to reject them, Korman says.

Rule #5: Be Consistent in Applying Your Policy

If you are going to screen applicants on the basis of citizenship or immigration status, you must be consistent in your screening. Although HUD said it was permissible to screen applicants based on citizenship or immigration status, it warned that such a policy may not be applied in a discriminatory manner. “The HUD warning is a reminder to management that it may not favor applicants from one country or nationality over another, such as allowing those from the United Kingdom, but denying those from Iran,” says Hein.

To avoid discrimination claims, train your staff in the details of the policy and that it must be applied to all applicants. Regardless of what happens in Washington, immigration is likely to remain a polarizing issue. The key to avoiding potential fair housing problems is to train your staff in your policy and the importance of applying it to all applicants.

COACH’S TIP: “While rental owners and managers are not required to provide applicants with the screening criteria, it is advisable to have a written statement that explains the rental qualifications that are applicable to all residents,” Hein advises. “This can be a general written statement that is available for any applicant who requests it,” he says.

Rule #6: Check State and Local Rules Before Adopting Screening Policy

Before adopting your policy, check state and local laws affecting owners’ obligations in screening applicants based on their citizenship or immigration status. While you may not be in trouble under the FHA, you run the risk of violating state or local laws if your property is in a state or community that has adopted measures on immigration affecting residential rental property.

Local ordinances requiring owners to verify applicants’ immigration status often impose severe sanctions, including stiff fines or loss of their business license, for failure to comply. Since legal developments at the state and local level are changing rapidly, it's best to fully research the issue or consult an attorney in your area, before you adopt a policy.

Resources

2003 memo: “Response to concerns about housing security following September 11, 2001,” www.hud.gov/offices/fheo/library/sept11.cfm.

2007 study: “Division and Dislocation: Regulating Immigration through Local Housing Ordinances,” Immigration Policy Center, Summer 2007, www.ailf.org/ipc/special_report/Special Report0907.pdf.

Fair Housing Act: 42 USC §3601 et seq.

Coach Sources

Jay Harris: Vice President, Business Services, First Advantage SafeRent; Rockville, MD

Robin Hein, Esq.: Attorney at Law; Atlanta, GA

A.J. Johnson: A.J. Johnson Consulting Services Inc.; Williamsburg, VA

Henry Korman, Esq.: Attorney at Law; Newton, MA

Sidebar

COACH'S TIP: Although owners and property managers of private housing can set their own screening criteria for applicants based on their citizenship or immigration status, owners and managers of government-assisted housing don't have that option. Federal law limits eligibility to live in government-financed housing programs to U.S. citizens and certain noncitizens who have eligible immigration status. Under federal rules, owners are responsible for following the regulations on assistance to noncitizens, including complying with specific verification procedures.

Sidebar

Documents Establishing Legal Status

Housing expert A.J. Johnson of Williamsburg, Va., advises clients to require all applicants to furnish certain documents and reject all applications of those who do not provide the documents. To establish applicants' legal status, he suggests requiring all applicants to provide either:

• One of the documents in the first bulleted list below; or

• One of the documents in the second bulleted list and one of the documents in the third bulleted list.

The documents in the first list generally prove both identity and that someone is in the country legally under federal immigration rules, Johnson explains. The documents in the second list generally prove the applicants’ identity, and the documents in the third list prove that they have a legal right to be in the United States.

List 1—Any one of the following:

• U.S. passport (expired or unexpired);

• Unexpired foreign passport, with I-551 stamp or attached Form I-94 indicating unexpired employment authorization;

• Permanent Resident Card or Alien Registration Receipt Card (Form I-551);

• Unexpired Temporary Resident Card (Form I-688);

• Unexpired Employment Authorization Card (Form I-688A); or

• Unexpired Employment Authorization Document issued by U.S. Citizenship and Immigration Service (USCIS) (Form I-766 or I-688B).

List 2—Or any one of the following documents that establish identity:

• Driver's license or ID card issued by a state or outlying possession of the United States if it contains a photograph or information such as name, date of birth, sex, height, eye color, and address;

• ID card issued by federal, state, or local government agencies, if it contains a photograph or information such as name, date of birth, sex, height, eye color, and address;

• School ID with a photograph;

• Voter Registration Card;

• U.S. Military Card or Draft record;

• Military dependent's ID card;

• U.S. Coast Guard Merchant Mariner Card;

• Native American tribal document; or

• Canadian driver's license.

List 3—Plus, any one of the following documents that establish employment eligibility:

• U.S. Social Security Card (other than a card stating it is not valid for employment);

• Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350);

• Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States, bearing an official seal;

• U.S. Citizen ID card (Form I-197);

• ID card for use of a resident citizen in the United States (Form I-179); or

• Unexpired employment authorization document issued by the Department of Homeland Security (other that those listed above, for which only one form is needed).