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Checking Legal Residency

Legal Residency
February 2019

Onsite staff are not equipped to police or determine the validity of residents’ immigration paperwork.

Immigration is a subject that lately has generated significant debate at the federal level. As efforts to regulate immigration in Congress continue to stall, state and local policymakers are weighing in on the issue on a more frequent basis.

While the issue is being used as a political football at all levels of government, there is one consistent outcome—property owners and operators are required to comply with a patchwork of onerous requirements and face possible legal liability under fair housing laws when it comes to screening the immigration status of residents.

In many cases, the measures instituted by state and local lawmakers pertain to verification—similar to the E-Verify requirements that apply to employers that are engaged in federal contracts. Some jurisdictions—such as the City of Hazleton, Pa. — enacted ordinances that require property owners and managers to verify the immigration status of residents or face violations and possible suspension of the owner’s business license for noncompliance. 

In the end, measures similar to Hazleton were invalidated by the courts as unconstitutional. Hazleton and several other cities that followed its lead were ordered to pay millions in legal fees to aggrieved parties. For policymakers, the lessons learned remain relevant to conversations about legislation. Apartment owners and operators are in the business of housing individuals in the community. Apartment operators’ employees, onsite staff, in particular, are not equipped to police or determine the validity of residents’ immigration paperwork.

Furthermore, policies that penalize owners with suspension or possible revocation of an apartment firm’s business license have severe consequences for a local community and its renters. If a housing provider was stripped of the ability to operate, consequences could include closures of apartments in that company’s overall portfolio as well as eviction or termination of the tenancies of all existing residents. Such policies would effectively reduce the supply of available housing in a community.

In stark contrast to the approach taken by Hazelton, the state of California enacted the Immigrant Tenant Protection Act. The law strictly prohibits owners from inquiring about, disclosing or otherwise discriminating against an individual in housing on the basis of their immigration or citizenship status. It also prevents local governments from enacting legislation that compels apartment owners to comply with verification requirements or otherwise deny or interfere with an individual’s housing rights on these bases. If an owner violates the law, he or she may be required to pay damages to the resident, including a monetary award of six to 12 times the monthly rent charged, at the Court’s discretion. 

Regardless of whether legislation seeks to mandate or prohibit housing providers from inquiring about the legal residency of immigrants, both create potential challenges for the apartment owners and operators. Such laws can interfere with owners’ overall resident screening process and are not limited to verification of immigration documents. For example, according to California’s law, owners and operators are prohibited from evicting a resident based on the failure to pass a credit check or the inability to provide a valid Social Security number. 

To complicate matters, owners and operators could be subject to fair housing violations for screening residents based on immigration or citizenship status. NAA filed an amicus brief (the process by which third parties, outside of the parties to the case, comment on issues of importance in appellate court) on a legal case of national significance in de Reyes vs. Waples Mobile Home Park Ltd. The Fourth Circuit’s ruling, in this case, would allow any apartment owner or operator to come under scrutiny and be subject to a fair housing disparate impact claim if the owner requires applicants to provide a Social Security number or otherwise show documentation to prove legal immigration status as a condition of tenancy. The case could set a legal precedent if the Court’s ruling were to stand or if it were adopted by other courts. 

NAA supports comprehensive federal legislation that would help create predictability and consistency for apartment owners and operators. As they consider immigration legislation, state and local policymakers should recognize the importance of resident screening in rental housing. Screening is essential to help owners manage their finances, assess risk and protect the safety and security of residents, employees and their assets. In particular, lawmakers should avoid implementing measures that would restrict the use of Social Security numbers or credit history or require housing providers to authenticate the immigration status of prospective or current residents. Enforcement of such laws can create administrative burdens for apartment providers, reduce the supply of available rental housing and further exacerbate housing affordability issues. 

NAA opposes efforts to implement laws that would limit an apartment owner or operator’s ability to properly screen residents, or measures that would require them to enforce federal immigration laws. Housing providers are not in the business of policing or authenticating the validity of an individual’s immigration paperwork. 

NAA stands at the ready to assist affiliates and members with immigration policy concerns. For information, please contact Nicole Upano, Director of Public Policy, NAA