Mark A Ivener, A Law Corporation

OSC Issues Technical Assistance Letter on E-Verify Issues

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical assistance letter on April 15, 2015, in response to a query from an attorney expressing concerns about the possible conflict between the obligations that Texas state contractors and certain Texas state agencies have under federal E-Verify rules and their obligations under a Texas executive order, RP-80. The attorney also raised a concern about a potential violation of the antidiscrimination provision of the Immigration and Nationality Act (INA), which the OSC enforces.

First, the attorney expressed 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. The attorney noted that as a general matter, federal E-Verify rules require E-Verify users to create E-Verify cases only for newly hired employees, whereas RP-80 requires Texas contractors to use E-Verify on all their current employees performing duties in Texas, whenever hired. Second, the attorney raised concerns about RP-80’s requirement that certain Texas state agencies use E-Verify for “all current and prospective agency employees.” The attorney observed that federal E-Verify rules bar all employers from creating E-Verify cases for an individual before he or she accepts a job offer and completes the employment eligibility verification form (I-9). Finally, the attorney expressed concern that under RP-80, a nationwide employer may seek “to root out employees” by “transferring some complainers into Texas after winning a Texas project” and running them through E-Verify, potentially violating the antidiscrimination provision.

In response, OSC noted that it cannot provide an advisory opinion on any set of facts involving a particular individual or entity, but that the agency can provide general guidelines. Regarding the apparent conflict between federal E-Verify rules and the provisions of RP-80, OSC noted that U.S. Citizenship and Immigration Services (USCIS), the agency that administers the E-Verify program and issues related guidance, has advised employers in Texas that federal E-Verify requirements are in effect at all times. Under federal E-Verify rules, OSC noted, most employers using E-Verify may only create E-Verify cases for new hires. However, federal E-Verify rules provide an exception for employers enrolled in E-Verify as federal (not state) contractors. Such federal contractors must create cases in E-Verify both 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.

OSC also noted that federal E-Verify rules also prohibit all employers from creating an E-Verify case for an individual who has not yet accepted a job offer and completed an I-9. 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 [memorandum of understanding] with USCIS.” OSC said that “[f]ailure to comply with E-Verify program rules could lead to possible termination or suspension from the E-Verify program.”

Regarding the attorney’s concern that an employer may violate the antidiscrimination provision of the INA when it uses E-Verify to improperly “root out employees,” the OSC noted that 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.” The OSC said these concerns are heightened “where an employer requires an existing employee to provide new Form I-9 documentation to run the existing employee through E-Verify when not permitted to do so under federal E-Verify requirements.”

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.