Category: tenant-screening

Why Immigration Status Questions Matter in Tenant Screening

Most California landlords understand they cannot discriminate on the basis of race, color, or national origin. Fewer understand that immigration status and citizenship screening is treated as a distinct protected category under state law — with its own statutory prohibition and enforcement mechanism.

The distinction matters because a landlord who asks “Are you a U.S. citizen?” is not just asking about national origin. They are explicitly collecting information protected by Civil Code §1940.35, which was enacted to prevent landlords from using tenant screening as an immigration enforcement proxy.

This law applies regardless of:

• Your property size (2 units or 75 units)
• The tenant’s stated immigration status
• Whether you’re screening through an agent or directly
• Whether you intend discriminatory harm
• Local enforcement capacity

In practice, this creates a blind spot in screening. Many landlords use employment verification and credit reports to assess financial stability — which are legal. But asking for a passport, visa, green card, or direct citizenship confirmation crosses into prohibited territory.

The penalty structure makes compliance expensive: individual DFEH complaints can result in $2,500 per violation (not per case), plus actual damages and attorney fees. Multiple applicants screened using prohibited questions = multiple violations.

Civil Code §1940.35: The Exact Statutory Language

Full text: “A landlord, property manager, or agent of a landlord shall not inquire about, request, or require disclosure of information regarding the immigration status of an applicant for a tenancy or an occupant of a residential property. A landlord, property manager, or agent shall not make any determination regarding an applicant’s eligibility for tenancy based on immigration status.”

Three operative elements:

1. Prohibition on Inquiry

You cannot ask questions that elicit immigration status information. This includes:

• “Are you a U.S. citizen?”
• “What is your immigration status?”
• “Are you authorized to work in the United States?”
• “Do you have a green card?”
• “When did you become a citizen?”
• “Where were you born?” (when used to determine citizenship)
• “How long have you been in the country?”

The statute uses “inquire about” — meaning the question itself violates the law, regardless of how you use the answer.

2. Prohibition on Requesting Disclosure

You cannot require documents that reveal immigration status. Prohibited documents include:

• Passport (any country)
• Visa or visa stamp
• Green card (Permanent Resident card)
• Travel documents (Form I-131, Advance Parole document)
• Work authorization card (Form I-766)
• Arrival/Departure record (Form I-94)
• Birth certificate (when used to determine citizenship, especially for applicants born outside the U.S.)

This does not prohibit requesting documents for other purposes. A Social Security number for background check purposes is permissible; a passport to “verify identity” is not.

3. Prohibition on Using Immigration Status in Eligibility Determination

Even if you somehow obtain immigration status information (e.g., a tenant volunteers it), you cannot use it to deny tenancy. Immigration status cannot be a factor in your lease approval decision.

This means a fully income-qualified applicant cannot be rejected based on visa status, work authorization limitations, or undocumented status.

Government Code §12955: FEHA Enforcement & Penalties

Civil Code §1940.35 violations are enforced through the California Fair Employment and Housing Act (FEHA), codified in Government Code §12955. This creates both administrative and civil consequences.

California Department of Fair Employment and Housing (DFEH) Enforcement

The DFEH investigates complaints and can issue cease-and-desist orders. Penalties include:

• Up to $2,500 per violation (not per case — screening 3 applicants with prohibited questions = 3 violations)
• Actual damages (emotional distress, lost housing opportunity)
• Attorney fees and costs (complainant’s attorney fees are recoverable)
• Injunctive relief (mandatory policy changes, compliance training, monitoring)

Filing deadline: Tenants have 3 years from the alleged violation to file with the DFEH. The DFEH has no time limit to investigate after filing.

Private Right of Action Under FEHA

A rejected applicant can sue directly in Superior Court without filing with the DFEH first (though the DFEH process is commonly used). Potential outcomes:

• Actual damages (compensatory damages for emotional distress, lost housing benefit, relocation costs)
• Punitive damages (up to $3 per violation in some cases, though courts award vary)
• Attorney fees
• Injunctive relief (court order to cease conduct, attend training)

Unlike administrative penalties (which max out at $2,500 per violation), court awards for emotional distress and punitive damages in housing discrimination cases can reach $10,000-$50,000+.

What You CAN Ask & Screen For (Legal Alternatives)

Civil Code §1940.35 is a prohibition on immigration-status-specific questions. It does not prevent you from screening for financial stability, creditworthiness, criminal history, or rental history using standard, non-discriminatory tools.

Income & Financial Verification (Legal)

• Social Security Number: For credit report purposes (required by credit bureaus anyway). SSN is not proof of citizenship.
• Employment verification: Contact employer directly. Ask “Is [Name] currently employed?” and “What is their position and income?” Do not ask about work authorization status.
• Pay stubs: Request last 2-3 months of pay stubs to verify income. Do not reject based on the document language or pay stub format (some H-1B visa holders, for example, have legitimate pay stubs).
• Bank statements: For self-employed applicants. Do not reject based on the bank or account type.
• Tax returns: For self-employed applicants. Accept IRS Form 1040 or Schedule C. Do not require ITIN vs. SSN-based returns as a discriminator (both are valid).
• Credit report: Run a standard credit check through an authorized credit bureau. No immigration inquiry necessary.

Criminal & Rental History (Legal)

• Background check: Standard criminal background check (use compliant third-party vendor). Ask about arrests/convictions related to violence, property damage, or drug manufacturing (not simple possession or immigration-related convictions).
• Eviction history: Review court records for prior evictions. This is public record and does not implicate immigration status.
• Rental references: Contact prior landlords to verify timely rent payment and property care. This is permissible and non-discriminatory.

Identity Verification (Legal Alternatives to Passport/Visa)

Document Type	Legal for Screening?	Notes
Driver’s license	Yes	Standard identity verification; does not indicate immigration status
State ID (CA DMV ID)	Yes	Acceptable alternative to driver’s license
Passport	No	Explicitly reveals citizenship/nationality; prohibited under §1940.35
Visa or visa stamp	No	Explicitly indicates immigration status
Green card	No	Explicitly indicates permanent resident status
Birth certificate	Conditional	Only if used for identity verification (matches name/DOB), not to determine citizenship
Utility bill or lease copy	Yes	Proves current address; does not reveal immigration status

Indirect Discrimination & Proxy Questions

The law prohibits not just direct questions about immigration status, but also questions that function as proxies for citizenship determination. These indirect violations are enforced with equal penalties.

Prohibited Proxy Questions

• “Where were you born?” — If used to determine whether applicant is a natural-born citizen (permissible only if you ask all applicants to verify address history for fraud purposes)
• “What is your accent/native language?” — Asking about fluency or forcing English-only communication (except for lease comprehension verification)
• “How long have you been in the United States?” — Directly implies citizenship status inquiry
• “Do you speak English?” — This question alone is problematic; you may accommodate language assistance instead
• “What is your national origin?” — Related FEHA violation; cannot be used to screen out applicants
• “Are you authorized to work?” — Directly implies immigration status inquiry (this is an employment question, not a housing question)

If you ask a question that reveals immigration status regardless of how you justify it, it violates §1940.35. The statute looks at the practical effect, not your intent.

Compliant Tenant Screening Checklist

Use this checklist to audit your screening application and process:

Application Form Review

• ☐ Remove any field asking for citizenship status or immigration status
• ☐ Remove any field asking “Where were you born?” unless you use it uniformly to verify address history (and document that purpose)
• ☐ Remove any field asking “How long have you lived in the U.S.?”
• ☐ Retain SSN field for credit check purposes (with clear notation that it’s for background check only, not citizenship verification)
• ☐ Retain employment verification field (ask employer directly, do not ask applicant about work authorization)
• ☐ Add language: “Your immigration status will not be considered in our housing decisions. Applicants of all backgrounds are welcome to apply.”

Documentation Review

• ☐ Instructional materials request driver’s license, state ID, or utility bill (not passport, visa, green card, or birth certificate)
• ☐ Credit bureau is instructed to pull reports using SSN (standard practice; no applicant instruction needed)
• ☐ Background check vendor is instructed to check criminal/eviction history only (not immigration records)
• ☐ Employment verification calls are scripted to avoid work-authorization questions

Decision-Making Process

• ☐ Scoring rubric includes only: income verification, credit score, criminal history, eviction history, rental references
• ☐ Immigration status (even if obtained) is excluded from decision rubric and file entirely
• ☐ Rejection reasons are documented and do not reference immigration, citizenship, or national origin
• ☐ All rejections are logged with a reason code (income < threshold, poor credit, eviction history, etc.)

Staff Training

• ☐ All property managers, agents, and office staff have received written training on §1940.35 and FEHA compliance
• ☐ Training includes specific language to avoid (see “Prohibited Proxy Questions” above)
• ☐ Training includes consequences for violations (DFEH enforcement, civil liability, termination)
• ☐ Training is documented (date, attendees, content summary)

Real-World Scenarios: Legal vs. Prohibited

Scenario 1: Applicant’s Pay Stub Looks Foreign

Situation: You receive a pay stub for a prospective tenant. The pay stub is formatted differently, and the company name suggests foreign employment or visa sponsorship. You’re concerned about work authorization.

Prohibited Response: “This pay stub looks foreign. Please provide a visa or green card to prove you’re authorized to work.”

Compliant Response: Accept the pay stub as income verification. If the income is insufficient under your criteria, reject on income grounds. Do not inquire about work authorization or request immigration documents.

Legal Principle: You can verify income through documents. You cannot verify immigration status through documents or direct inquiry.

Scenario 2: Applicant Speaks with Heavy Accent

Situation: During a phone screening or in-person meeting, the applicant speaks English with a noticeable accent. You question whether they’ll be able to understand the lease.

Prohibited Response: “I’m concerned about your English. Can you read and sign this lease?” (implying citizenship concerns)

Compliant Response: Provide lease in applicant’s preferred language (California requirement under Fair Employment and Housing Act). Verify comprehension by reviewing lease terms aloud. Offer lease in Spanish if requested. Do not make assumptions about language proficiency based on accent.

Legal Principle: Language barriers are addressed through accommodation, not through inquiries about citizenship or national origin.

Scenario 3: Applicant Has No Social Security Number

Situation: An applicant provides an Individual Taxpayer Identification Number (ITIN) instead of an SSN. Some ITIN holders are non-citizens. You’re concerned about legitimacy.

Prohibited Response: “ITINs are only for non-citizens. Please provide your green card.”

Compliant Response: Accept the ITIN for credit report purposes (many credit bureaus accept ITINs). Run background check and credit report using ITIN. Screen based on credit score and income, not on the type of number provided. ITINs are issued by the IRS to individuals who don’t have SSNs — including some citizens and many lawful residents.

Legal Principle: ITIN vs. SSN is not a proxy for immigration status. Both are valid federal identification numbers.

Scenario 4: Applicant Has No Prior Rental History

Situation: An applicant recently moved to California and has no prior rental history (only family or friends’ couches). You assume they might be undocumented.

Prohibited Response: “How long have you been in the U.S.? Do you have a visa or green card?”

Compliant Response: Request alternative references: employer (length of employment), bank references, character references. If income is verified and credit is acceptable, lack of rental history alone is not grounds for rejection. Consider asking recent employers how long applicant has worked for them.

Legal Principle: Lack of rental history does not establish grounds to inquire about immigration status. You must find alternative ways to verify creditworthiness.

Using Third-Party Screening Vendors Safely

Many landlords delegate screening to property management software or background check vendors. Your responsibility for §1940.35 compliance does not disappear when you use a vendor.

Vendor Instructions & Agreements

• Ensure your vendor contract explicitly prohibits immigration status inquiries
• Request written confirmation that the vendor does not request or consider immigration documents
• Review the vendor’s screening application form (it should not include citizenship/immigration questions)
• If using a credit bureau, ensure instructions specify “pull credit report using SSN” (not “verify citizenship”)

Data Receipt & Review

• When you receive screening results, exclude any immigration-related data from your decision files
• If a vendor report includes immigration status information, do not use it and document that it was excluded
• Base your decision on: credit score, income, criminal history, eviction history (only)

Recommended Vendor Features

When evaluating screening software, confirm the platform includes:

• Automated income verification (employer contact, pay stub upload)
• Credit report integration (third-party bureau, FCRA-compliant)
• Criminal background check (third-party vendor, excludes immigration convictions)
• Eviction history check (public court records)
• Rental reference calls (automated or manual)

LeaseBase’s Compliance Engine includes built-in screening form audits that flag immigration-status questions before you send them to applicants, reducing your risk of §1940.35 violations.

Post-Move-In: Employment I-9 Verification

Section 1940.35 applies to tenant screening. It does not prohibit I-9 verification for employees (property managers, maintenance staff, office workers).

If you employ on-site staff, you must comply with federal I-9 rules (8 U.S.C. §1324a). The I-9 process requires you to verify work authorization. This is a federal employment requirement, not a housing requirement, and is separate from tenant screening.

Key Distinction

Context	Immigration Inquiry	Legal Status
Tenant screening	Prohibited	Violates Cal. Civ. Code §1940.35
Employee I-9 verification	Required	Mandated by federal law (8 U.S.C. §1324a)

Do not use I-9 verification as a screening mechanism for tenants. The I-9 is for employees only and creating an I-9 for a non-employee tenant would itself constitute illegal discrimination.

Documentation & Defense Strategy

If you’re ever accused of immigration-status discrimination, your documentation becomes critical. Create and maintain:

Screening Policy Documentation

• Written screening policy that explicitly states: “Immigration status will not be considered in housing decisions”
• Copy of your screening application form (show it does not ask citizenship questions)
• Records of staff training on §1940.35 compliance (dates, attendees, content)

Individual Applicant Files

• Completed screening form (showing which data was collected)
• Credit report, income verification, criminal/eviction check results
• Denial letter with specific, documented reason (e.g., “Credit score below 620,” “Income does not meet 3x rent requirement”)
• No immigration-status-related documents or notes

Vendor Records

• Screening vendor contract with explicit prohibition on immigration inquiries
• Vendor application form (audit showing no citizenship questions)
• Written confirmation from vendor that immigration status is not considered

The DFEH and courts look favorably on landlords who maintain clear, documented screening policies and apply them consistently across all applicants.

Recent Developments & 2026 Enforcement Trends

California’s DFEH has increased enforcement of §1940.35 violations in the past two years. Key trends:

DFEH Settlement Patterns (2024-2026)

• Average settlement amounts: $5,000-$15,000 per applicant (including penalties, damages, and attorney fees)
• Increased targeting of online listings: DFEH reviews rental advertisements on Zillow, Craigslist, and Apartments.com. Listings that include language like “Must be a U.S. citizen” or “Proof of legal status required” trigger investigations.
• Third-party enforcement: Immigration rights organizations and fair housing nonprofits file complaints on behalf of applicants. Complaints often target property management companies and large portfolios, but individual landlords are also named defendants.
• Attorney fee awards trending upward: Successful complainants recover attorney fees at rates of $250-$500/hour for 50-200 hours of work, resulting in single-case attorney fees of $12,500-$100,000+.

Policy Changes (2025-2026)

As of August 2026, no statutory amendments have been made to §1940.35. However, the DFEH issued updated guidance in 2025 clarifying that:

• Requesting a passport “for identity verification” is still prohibited (guidance states identity can be verified through driver’s license)
• Employer work-authorization inquiries (“Are you authorized to work in the U.S.?”) are prohibited in tenant screening contexts (they’re employment questions, not housing questions)
• Zip code screening patterns that correlate with immigrant populations may be subject to disparate-impact scrutiny (fact-dependent)

FAQ: Immigration Status & Citizenship Screening

Q1: Can I ask an applicant if they’re a U.S. citizen if I ask all applicants?

A: No. Civil Code §1940.35 prohibits the question categorically — not just for some applicants. Asking all applicants does not cure the violation; it multiplies it. Each applicant screened with a prohibited question constitutes a separate violation under the FEHA.

Q2: What if a tenant volunteers their immigration status without being asked?

A: Do not document it or consider it in your decision. If a tenant says “I have a green card,” acknowledge what they’ve said politely but do not request to see the document, do not make a note in the file, and do not factor immigration status into your approval decision. Base your decision only on income, credit, and rental history.

Q3: Can I use an ITIN instead of an SSN against an applicant?

A: No. Using ITIN vs. SSN as a rejection reason violates §1940.35. ITINs are valid tax identification numbers issued by the IRS to many categories of individuals (including some citizens). Many banks, employers, and credit bureaus accept ITINs. If an applicant meets income and credit criteria using an ITIN, you cannot reject based on the document type.

Q4: What if my tenant says they’re moving because of immigration enforcement or ICE raids in the area?

A: You cannot use this statement as grounds to evict or screen out applicants. If a tenant states immigration concerns as a reason for lease termination, that is the tenant’s choice — but you cannot initiate or accelerate an eviction based on immigration status or concerns. This is a tenant-initiated move, not a landlord action.

Q5: Are screening requirements different for applicants with foreign names or accents?

A: No. Apply the same screening criteria to all applicants regardless of name origin or language. Do not ask additional questions of applicants with foreign-sounding names or accents. This differential treatment constitutes both national-origin discrimination and immigration-status discrimination.

Resources & Further Reading

• California Civil Code §1940.35 — Full statute text (readily available on ca.gov)
• Government Code §12955 — California Fair Employment and Housing Act
• DFEH Enforcement Manual: www.dfeh.ca.gov (includes guidance on housing discrimination investigations)
• Fair Housing Project (UCLA): Maintains database of recent FEHA settlements and case law
• National Housing Law Project: Provides fair housing training and compliance resources for landlords

Compliance tools like LeaseBase’s Compliance Engine include state-specific guidance for California landlords and flag problematic screening language before forms are distributed to applicants.

Bottom Line: Build Compliant Screening into Your Process

§1940.35 compliance is not a one-time check — it’s a system. Once you remove immigration and citizenship questions from your application form and train your staff on the law, the ongoing risk is minimal.

The penalty for non-compliance (up to $2,500 per violation plus actual damages and attorney fees) is steep enough to justify the 30-60 minutes it takes to audit your current screening process.

Use objective, income-based and credit-based criteria for all applicants. Never ask about immigration status directly, indirectly, or through proxy questions. Your screening will be faster, more defensible, and legally sound.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance specific to your situation. California landlord-tenant law is complex and subject to frequent changes. This article reflects law as of August 2026. Immigration law also overlaps with housing law in areas not covered here (e.g., familial separation, retaliation for immigration reporting). An attorney experienced in both areas should review your specific circumstance.