Does Rick Perry's Executive Order Conflict with Federal E-Verify Rules?

A Texas lawyer asks the feds some pertinent questions, and they reply:

"This is in response to your email dated March 30,2015, to the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC" or "Office"). In your email, you express concerns about the possible conflict between the obligations that Texas state contractors and certain Texas state agencies have under federal E-Verify rules, on the one hand, and their obligations pursuant to Texas Executive Order RP-80, issued in December 2014, on the other hand. You also raise a concern about a potential violation of the anti -discrimination provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1324b, which this office enforces.

First, you express concern that RP-80's requirement that state contractors use E-Verify for "all persons employed during the contract term to perform duties within Texas" conflicts with federal E-Verify rules. As you point out, as a general matter, federal E-Verify rules require that E-Verify users create E-Verify cases only for newly-hired employees, whereas RP-80 requires Texas contractors to use E-Verify on all their current employees performing duties in Texas, whenever hired." Second, you raise concerns about RP-80's requirement that certain Texas state agencies use E-Verify for "all current and prospective agency employees." As you also correctly observe, besides prohibiting employers from creating E-Verify cases for current employees, federal E-Verify rules bar all employers from creating E-Verify cases for an individual before the individual accepts a job offer and completes a Form 1-9. Finally, you express concern that under RP-80, a nationwide employer may seek "to root out employees" by transferring some complainers into Texas after winning a Texas project" and running them through E-Verify, potentially violating the anti-discrimination provision of the INA. ... [More...]" - DOJ, Apr. 15, 2015.