Q.    How do I screen applicants based on their citizenship and immigration status without violating fair housing laws?

A.    It may be important to you to learn whether an applicant to your community is in the U.S. legally.  Since illegal aliens aren’t legally allowed to work in the U.S., you may have a concern about their ability to pay rent.  Also illegal aliens are subject to deportation, leaving you with a broken lease and little chance of collecting unpaid rent.

The Fair Housing Act prohibits you from refusing to rent to an applicant based on their race, religion or national origin.  HUD released a memo in January of 2003 stating that while it is illegal to discriminate based on race, religion or national origin, asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act.  Fair Housing experts agree that you may legally ask all applicants to provide documentation of their citizenship or immigration status during the screening process.  However, the HUD memo shouldn’t be interpreted to mean that you may set a policy of denying the application of any non-citizen (legally in the U.S. or not) simply because they are a non-citizen.  To do so may lead to a discrimination complaint based on national origin. 

Below are seven rules to follow if you decide you want to screen applicants based on their citizenship or immigration status.

1. You may ask whether applicant has the legal right to be in the U.S. and the basis for that right.
2. If applicant states they do not have the legal right to be in the U.S., you may reject his application on that basis.
3. If applicant claims to be a U.S. citizen, you may ask for proof.
4. If applicant claims to be a non-citizen with a legal right to be in the U.S., you may ask for proof.
5. If applicant can’t prove a legal right to be in the U.S., you may reject the application.
6. You may ask all applicants for a current “government-issued” ID.
7. Be consistent in your screening.

It is wise to follow these seven rules when screening applicants based on their citizenship or immigration status if you choose to screen.  But check with your legal counsel before implementing such rules.  State or local fair housing laws might differ from HUD rules and regulations.

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Last modified: 27 Aug 2010