MHCO Columns

Newly Emerging Protected Classes: Undocumented Immigrants

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Legal Risk: People who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination. Explanation: In January 2003, HUD issued a memo clarifying that the FHA “does not prohibit discrimination based solely on a person’s citizenship status”; nor, the memo adds, does the law bar discrimination based on “immigration status or resident alien” status. However, undocumented aliens and non-U.S. citizens who get excluded may have valid grounds to sue for other forms of discrimination, including religion, race, and especially national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status. Stated differently, a person doesn’t have to be a U.S. citizen to sue for discrimination.

Solution: There are five steps you can take to minimize discrimination risks when dealing with undocumented aliens: 

  1. Don’t make U.S. citizenship or immigration status a qualifying criterion for renting unless you have a legitimate, nondiscriminatory, and documented business justification for doing so—for example, because state or municipal law requires it;
  2. Be consistent in applying whatever screening policy you do adopt;
  3. Ask for the right form of verification of citizenship and/or immigration status (discussed below);
  4. Apply your normal screening standards to immigrants; and
  5. Don’t use an applicant or tenant’s immigration status as a bargaining chip.

How to Verify Immigration/Citizenship Status. Acceptable proof depends on whether you’re seeking to verify an applicant’s status as a citizen, immigrant, or nonimmigrant:

  • Citizenship: Acceptable proof of U.S. citizenship includes a valid current U.S. passport, birth certificate, or certificate of naturalization;
  • Legal immigrant: Proof of legal immigrant status, i.e., noncitizens who have the right to permanently remain in the U.S., include a Permanent Resident Card (a.k.a., “Green Card”) and an official Social Security number;
  • Legal nonimmigrants: Legal nonimmigrants are persons allowed to be in the U.S. on a temporary basis for specific reasons. Such applicants should have a non-U.S. passport from their native country along with a Form I-94, a.k.a., Arrival Departure Record or Entry Permit listing when they entered the U.S. and how long they have a right to stay. They also need a visa, such as an F-1 visa for students, unless they’re from one of the countries that has signed a visa waiver agreement with the U.S.

You Make the Call

Which of the following would be a legitimate reason to reject applicants who aren’t U.S. citizens?

a.         Being a U.S. citizen is required for leasing property under HUD program rules and/or state or local law 

b.         A non-U.S. citizen is generally less likely to pay rent on time each month

c.          Non-U.S. citizens are totally judgment proof


a. The fact that HUD program rules and/or state or local laws require landlords to verify that applicants are U.S. citizens before accepting them is a legitimate, nondiscriminatory justification.

Wrong answers explained:

b.         The assumption that noncitizens are less likely to pay rent is just that—an assumption, and one based on stereotypes. Consequently, it’s not justification for requiring applicants to be U.S. citizens.

c.          The reason c. is wrong is that it’s overstated. While evicting or suing a noncitizen for lease violations poses challenges, it’s not accurate to characterize immigrants as “judgment-proof.” In fact, persons in the U.S. illegally are likely to be far more amenable to threats of litigation.