DOJ finds Texas E-Verify Violates Federal E-Verify Rules
DOJ finds Texas Governor’s Executive Order Mandating E-Verify for State Agencies and State Contractors Violates Federal E-Verify Rules
4/23/2015
by Cox Smith Contact
On December 3, 2014, Governor Perry issued Executive Order RP-80, a mandate requiring all government agencies “under the direction of the governor to verify the eligibility of all current and prospective employees through the U.S. Department of Homeland Security’s E-Verify system.” Additionally, RP-80 requires all government contracts to include a provision that contractors and subcontractors of Texas State agencies utilize the E-Verify system as well.
Department of Justice Letter in 2015
On April 15, 2015, the Deputy Special Counsel for the U.S. Department of Justice (DOJ) issued a letter commenting on concerns as to RP-80, specifically regarding potential conflicts with federal E-Verify rules and anti-discrimination provisions of the Immigration and Nationality Act (INA). The DOJ letter states that current federal E-Verify rules allow employers to create E-Verify cases for new hires but do not permit employers to create cases for existing employees or potential hires. (Note that there are special rules in place for federal contractors subject to an E-Verify mandate that allow them to create cases for both new hires and existing employees.) Such use of the E-Verify system under RP-80 would be in violation of the Memorandum of Understanding for Employers (“MOU”) that employers complete during the E-Verify registration process and could lead to possible termination or suspension of an employer from the E-Verify program.
In an email to Cox Smith, a representative from the Perry administration (note that the Abbott administration has not made any formal comment on the E-Verify program), informed us that RP-80 applies to agencies after they have registered and completed their MOU with U.S. Citizenship and Immigration Services and that it applies only to new hires due to the federal E-Verify rules. The representative noted, however, that should E-Verify be expanded to include checks for current employees, RP-80 is broad enough to allow state agencies to apply the system to all existing employees.
With regard to the anti-discrimination provisions of the INA, the DOJ Special Counsel indicated that the INA prohibits discrimination on the basis of citizenship, immigration status, and national origin in the I-9 process when verifying an employee’s employment eligibility.
Thus, an employer requiring an existing employee to provide new Form I-9 related documentation, when this practice is not allowed by federal E-Verify rules, raises serious concerns that an employer may be treating an employee differently based on a perceived citizenship status or national origin and potentially be in violation of the INA.
http://www.jdsupra.com/legalnews/cli...vernors-81560/
