E-Verify Requirements in Texas: Employer Obligations

Federal law under 8 U.S.C. section 1324a(b) requires all employers to verify employment eligibility using Form I-9 within 3 business days of hire. E-Verify is the federal electronic verification system, but its use is mandatory only for federal contractors and subcontractors under 8 U.S.C. section 1324a(e), effective as of August 2009. The Department of Homeland Security (DHS) administers E-Verify.

Federal employers with contracts over $3,000 must use E-Verify. Private employers may use E-Verify voluntarily. The federal law does not require all private employers to use E-Verify, only those holding federal contracts. However, employers must comply with Form I-9 verification requirements regardless of whether they use E-Verify. Violations of federal employment verification requirements can result in civil penalties of $100 to $1,000 per violation, criminal penalties for knowing violations, and debarment from federal contracting.

The EEOC enforces anti-discrimination laws in the hiring process, while ICE (Immigration and Customs Enforcement) enforces employment verification requirements.

Texas law does not mandate E-Verify for all private employers, but Texas Government Code section 2306.6725 requires all employers that contract with the state of Texas and receive public funds to use E-Verify and provide an affidavit to that effect. This applies to construction contractors, professional services contractors, and vendors receiving state contracts.

Texas law is aligned with federal requirements, not stricter. Under section 2306.6724, employers seeking state contracts must submit an affidavit stating they will use E-Verify or attest that they do not knowingly employ undocumented workers. Private employers not contracting with the state have no state-level mandate to use E-Verify beyond federal requirements that apply to federal contractors.

Texas also has no state-specific employment verification statute that supersedes federal I-9 requirements. The state defers to federal law for private employer verification obligations. However, employers doing business with Texas state agencies, universities, or receiving state funding must comply with the E-Verify mandate in section 2306.6725.

Texas does not provide enhanced penalties or additional private right of action for E-Verify violations beyond federal law. Enforcement is handled by federal ICE for federal contractors and by state procurement offices for state contractors. All employers in Texas must still comply with federal I-9 requirements and, if federal contractors or state contractors, with E-Verify mandates.

E-Verify is exempt for employers with fewer than 4 employees in certain circumstances under federal law, though Form I-9 completion is still required. Employers not contracting with the federal government or state of Texas are not legally required to use E-Verify under current law; however, they must still complete Form I-9.

Employees hired before the effective date of a federal contractor agreement are not required to be verified through E-Verify if already properly I-9 verified. Secondary inspection employees and certain visa holders may have different E-Verify processing procedures.

Unions and collective bargaining agreements may have negotiated provisions affecting E-Verify participation, though union workers are not exempt from verification requirements. Federal contractors cannot use E-Verify status as a defense to discrimination claims if hiring decisions are based on verification results in a discriminatory manner.

Employers have a safe harbor defense if they follow Form I-9 procedures and use E-Verify in good faith. However, knowingly hiring undocumented workers constitutes a violation regardless of E-Verify use. Workers placed through temporary staffing agencies may fall under the agency's E-Verify responsibility, not the hiring employer's, depending on the contract structure.

Step 1: Document all hiring records. Maintain copies of Form I-9s, state identification documents, and E-Verify confirmation notices (if applicable). Keep records for at least 3 years after hire or 1 year after termination, whichever is longer. Note the dates when verification was completed and any issues or discrepancies encountered during the process.

Step 2: Establish an internal compliance process. Designate an E-Verify administrator responsible for timely submissions. Create a checklist ensuring Form I-9s are completed within 3 business days of hire. Train HR staff on proper document review and E-Verify procedures. Document that you obtained employee consent before E-Verify submission. Maintain records of when E-Verify verification was initiated and completed.

Step 3: File a complaint with the appropriate federal or state agency. For federal contractor violations or general E-Verify issues, contact U.S. Immigration and Customs Enforcement (ICE) at 1-866-DHS-2423 or submit a tip online at ice.gov. For violations of Form I-9 requirements, file with the Department of Justice Office of Immigration Litigation. For Texas state contractor violations, contact the Texas Attorney General's office or the specific state agency issuing the contract. Include documentation of the violation, dates, and names of affected employees.

Step 4: Understand the investigation process. Federal investigations typically take 30–60 days for initial response. ICE may request all I-9 forms and E-Verify records. Employers must provide evidence of good-faith compliance efforts. State contract investigations may be conducted by the state procurement office. Expect requests for documentation of your E-Verify policies, employee records, and compliance timelines. Cooperation and demonstration of corrective action can mitigate penalties.

Step 5: Consult an employment law attorney. Contact a lawyer specializing in immigration employment law if facing ICE investigation or state contract review. An attorney can review your I-9 and E-Verify practices, identify systemic issues, and negotiate with investigators. If penalties are assessed, legal representation is critical for appeal or settlement negotiations. Attorneys can also advise on preventive compliance measures to avoid future violations.