April 15, 2015 IER Technical Assistance Letter on use of E-Verify

U.S. Department of Justice
Civil Rights Division
Office o/Special Counsel/or Immigration-Related
Urifalr Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
April 15, 2015
BY EMAIL Gmonty@montyramirezlaw.com)
Jacob Monty, Esq.
Monty & Ramirez LLP
150 W. Parker Road, Third Floor
Houston, TX 77076
Dear Mr. Monty:
This is in response to your email dated March 30,2015, to the Office of Special Counsel
for Immigration-Related Unfair Employment Practices ("OSC" or "Office"). In your email, you
express concerns about the possible conflict between the obligations that Texas state contractors
and certain Texas state agencies have under federal E-Verify rules, on the one hand, and their
obligations pursuant to Texas Executive Order RP-80, issued in December 2014, on the other
hand. You also raise a concern about a potential violation of the anti -discrimination provision of
the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1324b, which this office enforces.
First, you express concern that RP-80's requirement that state contractors use E-Verify
for "all persons employed during the contract term to perform duties within Texas" conflicts with
federal E-Verify rules. As you point out, as a general matter, federal E-Verify rules require that
E-Verify users create E-Verify cases only for newly-hired employees, whereas I'RP-80 requires
Texas contractors to use E-Verify on all their current employees performing duties in Texas,
whenever hired." Second, you raise concerns about RP-80's requirement that certain Texas state
agencies use E-Verify for "all current and prospective agency employees." As you also correctly
observe, besides prohibiting employers from creating E-Verify cases for current employees,
federal E-Verify rules bar all employers from creating E-Verify cases for an individual before the
individual accepts ajob offer and completes a Form 1-9. Finally, you express concern that under
RP-80, a nationwide employer may seek "to root out employees" by I\transferring some
complainers into Texas after winning a Texas project" and rtllming them through E-Verify,
potentially violating the anti-discrimination provision of the INA.
You seek clarification on the following two issues:
1. 	Whether \ITexas state contractors (who are not federal contractors) may disregard the
terms of Executive Order RP-80 by choosing to E-Verify only new hires;" and
2. 	Whether "a Texas state agency may E-Verify current and prospective employees."

OSC cannot provide an advisory opinion on any set of facts involving a particular
individual or entity. However, we can provide some general guidelines regarding employer
compliance with the anti-discrimination provision of the INA. The anti-discrimination provision
prohibits four types of employment-related discrimination: (1) citizenship or immigration status
discrimination; (2) national origin discrimination; (3) unfair documentary practices during the
employment eligibility verification (Form 1-9 and E-Verify) process ("document abuse"); and (4)
retaliation for filing a charge, assisting in an investigation, or asserting rights under the anti
discrimination provision. 8 U.S.C. § 1324b. For more information about OSC, please visit our
website at: http://www.justice.gov/crt/about/osc.
Regarding the apparent conflict between federal E-Verify rules and the provisions ofRP
80, we note that U.S. Citizenship and Immigration Services ("USCIS"), the agency that
administers the E-Verify program and issues guidance on proper E-Verify procedures, has
advised employers in Texas that federal E-Verify requirements are in effect at all times. Under
federal E-Verify rules, most employers using E-Verify may only create E-Verify cases for new
hires. See E-Verify Memorandum of Understanding ("MOU") Art. LA, paras. 10-11, available at
http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Veri fy/E-
Verify Native Documents/MOU for E-Verify Employer.pdf; see also 8 U.S.C. § 1324a note,
Sec. 403(a)(3)(A) (providing that an employer enrolled in E-Verify should create a case for an
individual "by not later than the end of 3 working days" after hiring the individual). However,
federal E-Verify rules provide an exception for employers enrolled in E-Verify as federal
contractors. These federal contractors must create cases in E-Verify for new hires and for
existing employees performing work under the federal contract (if the employer has not already
created a case for the employee), and may choose an option to create cases in E-Verify for all
employees of the contractor. See E-Verify MOU, Art. LB, para. 2; E.O. 13465 (June 11,2008).
Federal E-Verify rules also prohibit all employers from creating an E-Verify case for an
individual who has not yet accepted ajob offer and completed a Form 1-9. See E-Verify MOU,
Art. 1.A, para. 10; 8 U.S.C. § 1324a note, Sec. 404(d)(4)(B) (providing that E-Verify shall have
reasonable safeguards to prevent unlawful discriminatory practices based on national origin or
citizenship status including, among other things, creating an E-Verify case prior to ajob offer).
Consequently, employers using E-Verify for prospective employees or using E-Verify for
current employees when not enrolled in E-Verify as federal contractors would violate federal E
Verify program rules - the same rules that the employers agreed to comply with in their MOU
with USCIS. Failure to comply withE-Verify program rules could lead to possible termination
or suspension from the E-Verify program. For further information regarding these potential
MOU violations and their consequences, we recommend that you seek information directly from
USCIS. Employers and their representatives may call E-Verify's employer hotline at 888-464
4218 and may submit written inquiries to E-Verify@dhs.gov.
Regarding your concern that an employer may violate the anti-discrimination provision
of the INA when it uses E-Verify to improperly "root out employees," the anti-discrimination
provision prohibits discrimination on the basis of citizenship, immigration status, and national
origin in the employment eligibility verification (Form 1-9 and E-Verify) process. Under the
INA, an employer commits unfair documentary practices when it rejects valid Form 1-9
documentation, demands more or different Form 1-9 documentation, or requests specific Form 1
9 documentation based on an employment-authorized individual's citizenship, immigration
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status, or national origin. An employer that uses RP-80 to assign an employee to work in Texas
for the purpose of reverifying the employee's employment authorization may raise concerns that
it is treating that employee differently in the employment eligibility verification process based on
perceived citizenship status or national origin. These concerns are heightened where an
employer requires an existing employee to provide new Form 1-9 documentation to run the
existing employee through E-Verify when not permitted to do so under federal E-Verify
requirements. 1
We hope this information is helpful. Thank you for contacting OSc.
Sincerely,
~ 	~~
Albelio Ruisanchez 	/
/ / 	Deputy Special Counsel
I Federal contractors must update Form 1-9 information and/or complete a new Form 1-9 to run existing employees .
through E-Verify in accordance with federal E-Verify requirements. See E-Verify MOU, Art. 2.B, para. 2.e-f. As
stated above, employers not enrolled in E-Verify as federal contractors may not run existing employees through E
Verify.
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