Dealing with Applicants Who Do Not Have Social Security Number
HUD requires all applicants to give you their Social Security number. But what if an applicant says she does not have one? HUD rules do not require you to accept applicants who do not have a Social Security number, nor do HUD rules bar you from accepting such applicants. Generally, sites do not reject these applicants. However, sites may also set a policy about requiring that an applicant obtain a Social Security number.
If you choose to accept applicants who don't have a Social Security number, you should take additional steps when screening them, because a Social Security number is the most reliable form of identification for getting a thorough background check on an applicant, says attorney Wendy R. Wilson, general counsel to the Texas Apartment Association (TAA). Without a Social Security number, it is harder for you to get adequate information to determine whether an applicant is a risk to your site, she adds.
But there are ways you can screen applicants who do not have a Social Security number, and still protect your financial interests and safeguard your site and its residents, Wilson says. We will give you three screening safeguards to help you protect site residents and your financial interests.
Safeguard #1: Get Valid Photo ID
If an applicant does not have a Social Security number, you should ask for some form of valid, state- or federally issued identification—preferably one with a photo on it, such as a passport, visa, or driver's license, Wilson explains. Nowadays, you cannot be sure that the identification is valid—even with a photo—because forgery is more prevalent than ever, she warns. The best way to make sure you are not being duped by false identification is to insist on government-issued photo identification, she adds.
PRACTICAL POINTER: HUD rules require you to make an applicant who claims not to have a Social Security number sign a certification that she has not been assigned a Social Security number [HUD Handbook 4350.3, par. 2-23]. You don't need a Social Security number or written certification for children under the age of 6, HUD says. HUD requires this statement to help fight fraud by applicants who try to withhold their Social Security number to keep you from learning damaging information about them. Some applicants are less likely to lie in a written statement, and if it turns out that the applicant lied, a written statement is evidence you can use in court.
Safeguard #2: Conduct Criminal-Records Check
Terrorist threats have made running a criminal-records check on every applicant more important than ever. An al Qaeda training manual uncovered during the administration's investigations into terrorist activity mentions that operatives should commit theft crimes as a means of funding terrorist activities.
To conduct a basic criminal-records check, you need only a person's name and birth date. Note, however, that without a Social Security number, you may not get accurate information about an applicant, because you may end up getting information about someone else who has the same name and birth date. Also, you may not be able to find out about an applicant's criminal history if the applicant is brand new to this country; criminal-records checks do not screen for crimes committed outside the United States.
Some screening companies, such as Real Page, SafeRent, Tenant PI, and National Tenant Network, offer to screen applicants by checking their names against the FBI's “Most Wanted” database and its list of known terrorists. And most will offer this service at no additional charge.
Beefing up the screening process at your site by running criminal-records checks is a good idea anyway. HUD's “one-strike” rule requires you to “make a determination as to an applicant's drug-related criminal history.” The rule does not require you to perform a criminal-records check to do this; you could, instead, ask the applicant himself, or check with the applicant's former landlords or other references.
But performing criminal-records checks consistently on every adult applicant is the fairest and safest way to make this determination. If you start running criminal-records checks, make sure you do so for every applicant, not just those who “look like” criminals or terrorists. Otherwise, you will run afoul of fair housing laws.
Safeguard #3: Have Noncitizens Fill Out Supplemental Application
In the wake of Sept. 11, 2001, the TAA issued what it calls a “supplemental rental application for non-U.S. citizens,” says Wilson, who, as general counsel to the TAA, uses the supplemental application. Although HUD's noncitizen rule requires you to confirm that all applicants either are U.S. citizens or are noncitizens eligible for assistance payments, the paperwork required to comply with that rule does not ask for sufficient information to verify the identity of non-U.S. citizen applicants.
The supplemental application asks for this information and can be helpful in safeguarding owners when applicants do not have a Social Security number or other state- or federally issued photo identification, says Wilson.
HUD has approved the use of the TAA's form, as long as sites use it in a nondiscriminatory manner, she says. This means that if you plan to use a similar form at your site, you must have every non-U.S. citizen fill out the form, not just those who appear to be, for example, from the Middle East. To help you decide whether to use such a form, you should look at your site's demographics, Wilson says. If your site is in a largely immigrant area, you may not want to use the supplemental application, because it may insult many of your applicants.
We have created a Model Form: Non-U.S. Citizen Supplemental Application. It's modeled on the one used by the TAA. You should require all prospective residents—and any person over the age of 18 who is not a U.S. citizen and who will be living in the unit—to fill out this application. The application asks for the following:
Name. Get each applicant's complete name. If you are filling out the application yourself, have each applicant carefully spell the name for you. Also, ask for any alternative spellings of the name.
Birthplace. Ask each applicant to specify the city, state, region or province, and country where he or she was born.
Countries of citizenship. Ask each applicant to name every country of which he or she is a citizen.
Passport number, country of origin. This information can help you assist authorities in a potential investigation.
Names, addresses, phone numbers of two contacts in home country. This gives applicants the opportunity to provide emergency contacts from their home country, says Wilson.
Alien registration number. Every non-U.S. citizen who is legally in the United States has an alien registration number. That number can help you verify the information the applicants give you.
Visa type, expiration date. A visa is proof that an applicant legally entered the United States. Every visa has an expiration date. Checking whether this date falls during the lease term is important. If it does, the applicant may leave before the lease term expires.
PRACTICAL POINTER: If an applicant's visa has expired or will expire shortly, make sure you ask the applicant about it. A person may remain in the United States legally even after the date the visa expires if her request for an extension remains under review. But you must make sure the applicant is still an eligible noncitizen as defined by HUD's noncitizen rule.
Names, cities of high schools/colleges attended. These serve as additional sources of verification should the FBI investigate a resident at your site, says Wilson. A terrorist would probably give you false information in response to this question, and that can be a red flag for the FBI, she adds.
Length of time in United States. An applicant who has been in the United States for a long time may also have reliable credit information, employment history, or a criminal history that you can check.
States where applicant has lived. If the applicant has lived in other states, run a criminal background check in those states.
Foreign or U.S. driver's license number(s). A driver's license is another verifiable piece of information that can be useful to the FBI in an investigation, explains Wilson.
Immigration status. The application asks the applicant whether she has ever been asked to leave the United States or any other country and, if so, to list those countries. This can help you determine whether an applicant is likely to abide by the terms of her visa and by the laws of the United States.
Applicant's signature, date. With this signature, you will have a powerful tool to evict the applicant if, during the lease term, you learn that she gave you incorrect information, she says.
PRACTICAL POINTER: What if the applicant is an illegal alien? Although federal law and HUD's noncitizen rule do not prohibit you from renting a unit to an illegal alien (although you cannot collect rental assistance on the unit), they also do not require you to, says Wilson. An applicant who is an illegal alien will not be able to complete most of the information on your form. Illegal aliens can be apprehended and deported by the Department of Homeland Security at any time, Wilson notes. You will have to decide whether the financial and/or safety risk posed by renting to an illegal alien is worthwhile for your site.
Wendy R. Wilson, Esq.: General Counsel, Texas Apartment Assn.; 1011 San Jacinto Blvd., Ste. 600 Austin, TX 78701; (512) 479-6252; email@example.com.
Can You Reject Applicants Who Don't Have Social Security Number?
Whether it violates fair housing law to reject an applicant who does not have a Social Security number is an issue that has not yet been resolved in court.
Wendy Wilson, general counsel to the Texas Apartment Association (TAA), argues that rejecting such applicants is a valid policy. She says it helps owners and managers determine whether an applicant is a financial risk. “People who do not have Social Security numbers or who are unwilling to divulge their Social Security numbers are not a protected class under fair housing law,” she notes. “Rejecting an applicant for not having a Social Security number is a rejection based on the person's inability to identify himself to the owner's satisfaction,” she adds.
As long as you reject every applicant who does not have a Social Security number, no one can accuse you of rejecting her because of her race, color, religion, marital status, national origin, sex, family status, or handicap, says Wilson. Also, almost any person lawfully in the United States can get a Social Security number, she notes. Only illegal aliens and those temporarily in the United States are prohibited from obtaining a Social Security number, she adds.
You are on safe ground to require proof of an existing Social Security number if an applicant claims to have one, says Wilson. In fact, HUD Handbook 4350.3 rules require applicants to show you, within 60 days of application, their Social Security number. If they do not (and they are not claiming that a Social Security number was never issued to them), HUD says you can reject their applications [HUD Handbook 4350.3, par. 4-9(B)(2)].
Until the issue is decided in court, you should follow the strategies we offer, rather than reject every applicant who does not have a Social Security number. But if you decide to require a Social Security number from all applicants, consider keeping applications for Social Security numbers on hand in your management office. Or at least be able to provide contact information for potential residents to call and request applications for Social Security numbers. That way, you can advise an applicant who does not have a Social Security number that you will keep his application on file until he obtains a Social Security number.
You can log on to the Social Security Administration's Web site at http://www.ssa.gov or call the agency at 1-800-772-1213 for more information.
See The Model Tools For This Article
|Non-U.S. Citizen Supplemental Application|