September 12, 2016 IER Technical Assistance Letter on use of E-Verify

OCR transcription for search; preserved printed pages are authoritative

EPARTMENT OF JUSTICE

U.S. Department of Justice
Civil Rights Division

Office of Special Counsel for Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509

September 12, 2016

BY EMAIL (dmetzger@lowenbaumlaw.com)

Diane Metzger, Esq.
Lowenbaum Law
222 S. Central, Suite 900
St. Louis, MO 63105

Dear Ms. Metzger:

This is in response to your email dated June 30, 2016, to the Office of Special Counsel
for Immigration-Related Unfair Employment Practices ("OSC"). In your email, you express
concerns about the possible conflict between the obligations that Missouri state contractors and
certain Missouri state agencies have under Section 285.530 of the Revised Statutes of Missouri,
on the one hand, and their obligations pursuant to federal E-Verify rules, on the other hand. You
also express concern that allowing Missouri state entities to run E-Verify cases on current
employees in violation of E-Verify rules may encourage those entities to "terminate certain
employees for reasons which may" violate the anti-discrimination provision of the Immigration
and Nationality Act ("INA"), 8 U.S.C. § 1324b, or other labor or employment laws.

As you point out, Missouri law requires that Missouri state contractors "affirm
enrollment and participation in" E-Verify "with respect to the employees working in connection
with the contracted services." You express concern that the law appears to contradict federal E-
Verify rules by requiring state contractors to create an E-Verify case for all employees working
on a state contract, even employees already working for the employer at the time it enrolled in E-
Verify. As you also note in your letter, as a general matter E-Verify allows employers to run
only new hires through E-Verify, except for federal contractors with an E-Verify clause in their
federal contract.

· You ask the following four questions:

1\. May a Missouri state contractor (who is not also a federal contractor) disregard the
obligations and requirements of section 285.530.2 RSMo. by choosing to create E-
Verify cases only for new employees hired after the state contractor enrolls in the
federal E-Verify program?

2\. Will a Missouri state contractor (who is not also a federal contractor) violate federal
E-Verify laws if, in compliance with section 285.530.2 RSMo., such state contractor
creates an E-Verify case for a current employee who was hired by the state contractor

<!-- PageBreak -->

prior to the state contractor enrolling in the federal E-Verify program, even if such
employee is "working in connection with the contracted services" of a Missouri state
contract or grant governed by section 285.530.2 RSMo .?

3\. May the state of Missouri (or any political subdivision of the state of Missouri) E-
Verify a current employee if such employee was hired by the state of Missouri (or
any political subdivision of the state of Missouri) prior to enrolling in the federal E-
Verify program?

4\. May the state of Missouri (or any political subdivision of the state of Missouri) E-
Verify current and/or 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 in hiring, firing, and recruiting; (2) national origin discrimination in hiring, firing,
and recruiting; (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.

Regarding the apparent conflict between federal E-Verify rules and Section 285.530 of
the Revised Statutes of Missouri, we note that U.S. Citizenship and Immigration Services
("USCIS") - the agency that administers the E-Verify program, ensures compliance with its
rules, and issues guidance on proper E-Verify procedures - has advised employers enrolled in
E-Verify that they are responsible for complying with the terms of their Memorandum of
Understanding ("MOU"), including (but not limited to) verifying all new hires through E-Verify
procedures.

Failure to comply with E-Verify program rules could lead to possible termination or
suspension from the E-Verify program. For general information about E-Verify, 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. However, USCIS cannot provide guidance on state or
local laws that require employer participation in E-Verify and typically refers callers with these
types of inquiries to state officials or local Chambers of Commerce. Unfortunately, OSC is also
unable to comment on whether any of the actions you describe would violate Missouri state law.

We also note that under the INA, an employer commits unfair documentary practices
when it rejects valid Form I-9 documentation, demands more or different Form I-9
documentation, or requests specific Form I-9 documentation based on an employment-authorized
individual's citizenship, immigration status, or national origin. Furthermore, the INA prohibits
terminating an employee based on citizenship or immigration status. To the extent a state
contractor terminates certain employees based on their citizenship or immigration status, the
employer may violate the anti-discrimination provision.

<!-- PageBreak -->

We hope this information is helpful. Thank you for contacting OSC.

Sincerely,
AA. D.G
Alberto Ruisanchez
Deputy Special Counsel