August 24, 2015 IER Technical Assistance Letter on use of E-Verify

U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for lmmigration~Related
Urifair Employment Practices~ NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
August 24, 2015
BY EMAIL (meghan.dressler@Thepgcgroup.com)
Meghan Dressler, Esquire
General Counsel
The PGC Group
13 5 West 29th Street, Suite 1102
New York, NY 10001
Dear Ms. Dressler:
This is in response to your email dated June 24, 2015, to the Office of Special Counsel
for Immigration.. Related Unfair Employment Practices ("OSC" or "Office"). You request
guidance on whether a staffing agency can, consistent with the anti-discrimination provision of
the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1324b, selectively use the E-Verify
program with respect to referrals for employment to one client but not others. Specifically, your
company is a staffing agency that does not currently use E-Verify, but a client company has
requested that you run temporary employees assigned to work for that client through E-Verify.
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 conduct: (1) citizenship or immigration status
discrimination; (2) national origin discrimination; (3) unfair documentary practices during the
employment eligibility verification (Form I-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.
U.S. Citizenship and Immigration Services ("USCIS") is the agency that administers E
Verify and issues guidance on proper E-Verify procedures, including E-Verify emollment. E
Verify is a voluntary program for most employers, but mandatory for some, such as employers
with federal contracts or subcontracts that contain the Federal Acquisition Regulation E-Verify
clause and employers in certain states that have legislation that mandates the use of E-Verify for
some or all employers. A staffing agency may enroll as an E-Verify Employer or an E-Verify
Employer Agent with limited participating hiring sites. Further guidance regarding enrollment

and use ofE-Verify by staffing agencies is found on the E-Verify website and in the applicable
E-Verify Memorandum of Understanding.1
Regarding your specific question about preventing discrimination, the INA's anti
discrimination provision and E-Verify's terms and conditions prohibit treating individuals
differently in the E-Verify process based on their citizenship status or national origin. An
employer that selectively creates E-Verify cases for employees based on citizenship status or
national origin may violate the anti-discrimination provision. For example, an employer should
not designate participating hiring sites for E-Verify based on the citizenship status or national
origin of the employees hired at .those locations. Moreover, we recommend against selective use
of E-Verify based on client demands because it could, at a minimum, create the appearance of
prohibited citizenship status or national origin discrimination, which may lead to workers filing
discrimination charges with this Office. However, to the extent that an employer or E-Verify
Employer Agent uses E-Verify selectively for reasons wholly unrelated to an individual's
citizenship status or national origin, that selective use would likely not violate the anti
discrimination provision.
We hope this information is helpful. Thank you for contacting OSC.
Sincerely,
Alberto Ruisanchez
Deputy Special Counsel
USCIS provides assistance to employers with determining the most appropriate E-Verify access method, including
through: E-Verify Enrollment Webinars, an E-Verify Enrollment webpage, the E-Verify Enrollment Quick
Reference Guide, and E-Verify customer support (888-464-4218 or E-Verify@dhs.gov). The latest versions of all
E-Verify MOUs, Guides, and Manuals referenced in this letter are available at http: //www.uscis.gov/e
verify/publications.
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