The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) used a case involving the apparent conflict between federal E-Verify rules and a Missouri state law to reiterate some general guidelines regarding employer compliance with the antidiscrimination provision of the Immigration and Nationality Act. Federal law requires that all employers verify the identity and employment eligibility of all new employees, including U.S. citizens, within three business days of hire. Employers are required to complete a Form I-9, and employees must provide employers with documentation establishing both identity and eligibility to work in the United States.

The U.S. Department of Homeland Security (DHS) and the Social Security Administration have established an electronic system called E-Verify to assist employers further in verifying the employment eligibility of all newly hired employees. Using E-Verify, employers can ensure that a new employee is authorized to work in the United States and that the employee’s name, Social Security number, and date of birth match government records.

In addition, many states currently have laws in effect requiring the use of E-Verify for public or private employers in an effort to crack down on the employment of unauthorized workers. However, employers can find themselves in tricky situations when state laws conflict with federal E-Verify requirements.

In 2016, the Missouri General Assembly enacted RSMo Section 285.530, a law prohibiting the employment of unauthorized aliens. Under the law, Missouri state contractors are required to “affirm [their] enrollment and participation in a federal work authorization program with respect to the employees working in connection with the contracted services” prior to the award of any contract or grant in excess of $5,000 by the state of Missouri. In order to comply with this requirement, Missouri employers are required to confirm employment authorization of new and existing employees through E-Verify before receiving a state government contract. However, according to the federal E-Verify program rules, E-Verify cannot be used for existing employees, unless the employer is a federal contractor with a federal contract containing the Federal Acquisition Regulation (FAR) E-Verify clause, making it impossible for employers to comply with both federal E-Verify rules and state law.

This conflict was brought to the attention of the OSC. In response to an inquiry regarding the “apparent conflict between federal E-Verify rules and Section 285.530 of the Revised Statutes of Missouri,” the OSC noted that United States Citizenship and Immigration Services (USCIS) “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.” However, the OSC was unable to comment or provide guidance on the Missouri state law itself, thus leaving many of Missouri’s more than 43,000 employers without clarification.

Congress has attempted on multiple occasions to implement mandatory E-Verify procedures for all employers in the United States, but all attempts have been unsuccessful thus far. The draft of an executive order that President Trump is expected to issue includes provisions that would direct DHS to identify ways to expand the use of E-Verify. A proposal floated previously by individuals on President Trump’s transition team suggests that the president may attempt to make the use of E-Verify mandatory for all employers. The specific nature of any changes to the E-Verify program would determine whether they could be put into effect through administrative action or if they would require legislation.