Texas Governor Rick Perry started December by issuing an Executive Order requiring E-Verify participation by all Texas state agencies and for all businesses contracting with the State of Texas.

Citing with approval advancements made with the E-Verify system and Texas and other states’ successes with the federal database, the Order requires all state agencies and all businesses providing contract services to the State of Texas to use E-Verify to verify the identity and U.S. work authorization of all employees (including State of Texas employees, contractors and subcontractors) employed during the term of the contract.  The Order requires:

“All agencies under the direction of the governor to verify the employment eligibility of all current and prospective agency employees through the U.S. Department of Homeland Security’s E-Verify system. All agencies under the direction of the governor to include, as a condition of all state contracts for services, a requirement that contractors utilize the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed during the contract term to perform duties within Texas; and

2. All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract.”

The Order further states, “Agencies not under the direction of the governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system and require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.”

This requirement that the State agencies, contractors and subcontractors use E-Verify for “current and prospective” employees is problematic and violates the federal E-Verify regulations. E-Verify regulations prohibit the use of the database to verify the status of individuals not already hired by the employer. Similarly, the regulations allow only employers subject to certain federal contracts to submit current employees’ data to E-Verify.  Although the Order goes into effect immediately, challenges are expected, because of this problematic language.

E-Verify is a federal database operated and monitored by DHS.  For most employers, new-hire employee information is submitted to the E-Verify system to verify the employee’s identity and work authorization. The database cross-references the Social Security Administration, DHS, and various other agency databases to provide verification or other updates to the employer.