According to the Department of Homeland Security, in 2008, there were 1,107,126 documented immigrants in the U.S. The agency also estimated that the number of unauthorized immigrants residing here totaled 11.6 million. On the surface this would seem to represent a burgeoning housing market of which landlords would want to take advantage. However, tapping into this market is not without its difficulties.
The problems associated with renting to non-U.S. citizens are compounded by the dichotomy between federal and state law, says Professor Michael Seng, Director of the Fair Housing Legal Clinic at the John Marshall Law School. The federal government makes no distinction between a legal or illegal immigrant, so renting to a foreign national is subject to the same standards as renting to a U.S. citizen. The difficulty arises on the state level if you live in a municipality that has made it an offense to rent to an undocumented immigrant. In some of these jurisdictions renting to an illegal "alien" is punishable by the imposition of a fine, but in others renting to unauthorized immigrants is a criminal offense.
If you do live in a state that allows you to rent to immigrants regardless of their legal status, keep in mind that the provisions of the Fair Housing Act apply even though non-U.S. citizens are not a protected class under the law.
There is also the question of what additional steps the state may require if you rent to a non-U.S. citizen. Some states may call for the tenant to produce verification of their legal status. There may also be a specific form that the landlord must file with the state that indicates that a documented foreigner is renting from you.
In general, the landlord doesn’t have the duty to inquire about status, explains Professor Seng. That means that since most criminal standards require that the offender know that they are committing the offense, renting to an illegal immigrant is typically not prosecuted as a criminal offense even in the states that consider it to be one.
You may decide, however, that even though it is sanctioned, you will follow a general policy against renting to non-citizens. This isn’t necessarily a violation of fair housing legislation. Where landlords can get in trouble is if their policy can be shown to have a greater impact on one particular immigrant group, meaning that by not renting to one group it is causing people with the same national origin to have the least chance of any immigrants to get an apartment in that neighborhood. Then it becomes a matter of discrimination based on national origin, which is a violation of the Fair Housing Act. Professor Seng was quick to note that this is a difficult case to prove.
Professor Seng added that credit checks could be performed on tenants that are non-U.S. citizens provided that you run credit checks on all of your tenants. If you only check the credit of minority applicants, then you’re violating the Fair Housing Act because you’re applying different standards to different rental applicants (also known as discrimination, under the law).
The eviction process doesn’t change if the tenant you’re evicting is a non-U.S. citizen. The only difficulty that Professor Seng anticipated was if local law required all evictions to be tracked. This could lead to problems if the state has a policy prohibiting leasing to undocumented immigrants, and you rented to one.
Finally, all of this boils down to one big question: Should you rent to non-U.S. citizens? “Yes”, says Professor Seng. “Legal foreign residents have the same rights under the law as anyone else. Besides, if you don’t rent to them, you could be opening yourself up to a charge of discrimination based on national origin.”
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