Fair Housing, United States Citizenship and Illegal Aliens

Recently, we addressed the issue of social security numbers.  Can you require them?  See the November 2005 edition of Landlord News (“Social Security Numbers and Lease/Rental Application Policies”) Citizenship and resident status are related topics.  In January of 2003, HUD issued a memo addressing these issues.  The HUD memo once again made it clear that it is unlawful to screen applicants on the basis of among other things, race, religion, or national origin.  What is National Origin?  National origin refers to your birthplace, ancestry, language, or customs.

However, the HUD memo stated you can discriminate based solely on citizenship status.  Specifically, according to HUD, the Fair Housing Act “does not prohibit discrimination based solely on a person’s citizenship status. ”  The Fair Housing Act also does not prevent discrimination based on immigration status or resident alien status.  The term alien doesn’t mean men from mars.  The term means foreign or alien to the U.S.  Immigration law classifies all non U.S. citizens as “aliens.”  Immigration status or resident alien status deals with a person’s right to be in the U.S. Does the applicant have a legal right to be in the U.S.?  If no, the person’s status is illegal.  Thus, the expression “illegal alien.”  If yes, the person’s status is legal.

The Fair Housing law is clear regarding citizenship and immigration status.  Asking housing applicants to provide documentation of their citizenship or immigration status during the screening process does not violate the Fair Housing Act.  You can ask and require applicants to prove that they are either a U.S. citizen or have a legal right to be in the U.S.  You may deny the application of any person who is not a U.S. citizen or does not have the legal right to be in the U.S.  Note, this includes any person who does not have the right to be in the U.S. for the full term of the lease.  For example, a student.  The student has a valid visa.  However, the visa is about to expire.  Because the student does not have the right to be in the U.S. for the full term of the lease, you may deny the lease.

As with all Fair Housing laws, consistency is the key.  If you screen based on citizenship or immigration status, you must consistently screen all applicants.  The HUD memo gives a clear example of what would be inconsistent discriminatory application of a citizenship or immigration status screen. A person from the Middle East who is in the United States applies for an apartment.  Because the person is from the Middle East, the landlord requires the person to provide additional information and forms of identification, and refuses to rent the apartment to him.  Later, a person from Europe who is in the United States applies for an apartment at the same complex.    Because the person is from Europe, the landlord does not have him complete additional paperwork, does not verify the information on the application and rents the apartment.  This is the disparate treatment on the basis of national origin.

If you screen on this basis, the application questions do not need to be overly complicated.  The questions can be very simple and strait forward.  Do you have a legal right to be in the United States?  Check one of the following.  Yes, because I am a United States citizen.  Yes, because I have the following valid documentation granting me the legal right to be in the U.S.

Acceptable proof depends on the applicant’s status as a citizen, an immigrant, or a nonimmigrant.  A valid current U.S. passport, a birth certificate, or a certificate of naturalization is acceptable proof of U.S. citizenship.  Again, you must be consistent, if Arnie Applicant states he is a U.S. citizen, and you accept his word for it without requiring further proof, you cannot require other applicants who state they are U.S. citizens to provide proof of U.S. citizenship.

Legal immigrants have not been granted citizenship status, but generally have the right to permanently remain in the U.S.  A Permanent Resident Card (formerly known as an “Alien Registration Card” or commonly referred to as a “Green Card”) is acceptable proof that an immigrant is legally in the U.S., and has the right to permanently remain.  As a general rule, holders of permanent resident cards will also have social security numbers unless they do not have the right to work in the U.S.

Legal nonimmigrants are persons only temporarily in the U.S. for a wide variety of reasons.   Business, pleasure, medical, or educational are but just a few reasons.  Except for Canadian citizens, nonimmigrants will have a passport from their native country.  Canadian citizens may legally enter the U.S. for up to six months without a passport or a visa but they must have proof of citizenship (by the end of 2007 Canadians will also be required to have a passport).  Anyone presenting a non – U.S. passport as proof of their right to be in the U.S., should also generally have attached to that passport a Form I-94 also known as an Arrival Departure Record, or Entry Permit.  A Form I-94 will set forth when the person entered the U.S. and how long they have a right to stay.

Unless the immigrant is either a Canadian citizen or from one of the 27 countries that have visa waivers with the U.S., the immigrant in addition to a passport should also have a visa.  There are many types of visas.  For example, students generally have F-1 visas.  If an applicant claims student status, you may contact the school to verify that they are enrolled.

If the immigrant has the right to work while temporarily in the U.S., the immigrant will also have a social security number or an ITIN (Individual Taxpayer Identification Number.  If you are presented with any documentation regarding legal immigration status, and are uncertain about the documentation, contact the firm or the Bureau of Citizenship and Immigration Services (“BCIS” formerly the U.S. Immigration and Naturalization Service or “INS”) or the State Department.

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