Illinois Prohibits Employers from Enrolling in the Department of Homeland Security's E-Verify Program

Effective January 1, 2008, Illinois will prohibit employers from enrolling in E-Verify, a Department of Homeland Security (DHS) program that electronically ascertains whether new hires are authorized to work in the United States. This amendment to the Right to Privacy in the Workplace Act prohibits enrollment in E-Verify unless Social Security Administration (SSA) and DHS databases can speed up and improve notification regarding which employees are not legally authorized to work in the United States. Specifically, the amendment bars enrollment by Illinois employers unless employers receive notice of employee ineligibility within three days after employee data is submitted in 99% of cases.

The E-Verify system currently operates as follows. At the time of hire, new employees complete Section 1 of the Form I-9 and present one document from List A or one document from both List B and List C to prove their identity and eligibility to work in the United States. The employer then examines the documents to determine whether they reasonably appear to be genuine, completes Section 2 of the Form I-9 and attests under penalty of perjury to the apparent genuineness of the documents. Within three days of hire, the employer submits to E-Verify employee social security numbers (SSNs) and other identification information, which is compared against SSA and, if necessary, DHS records. Federal law requires that E-Verify provide either a confirmation or tentative non-confirmation of an individual’s identity and employment eligibility within three working days of the initial inquiry.

If the new hire does not contest a tentative non-confirmation, E-Verify considers that to be a final non-confirmation of employment eligibility. If the new hire does contest a tentative non-confirmation, he or she is given instructions on how to pursue a secondary verification and has eight working days to contact the SSA or DHS to attempt to resolve the tentative non-confirmation. Federal law requires this secondary verification process to include a final confirmation or non-confirmation of employment eligibility within 10 working days of the tentative non-confirmation. The Illinois amendment seeks to require the SSA and DHS databases to make a determination on 99% of the tentative non-confirmation notices issued to employers within three days, as opposed to the 10 working days currently mandated by federal law.

Other states have passed laws demanding that employers cooperate with the DHS E-Verify program. Not surprisingly, on September 25, 2007, the United States filed suit in the U.S. District Court for the Central District of Illinois to enjoin the State of Illinois from going against this trend by implementing its amendment. The lawsuit contends that E-Verify now advises employers of employment eligibility within one day in approximately 93% of cases and that 750 Illinois employers currently participating in the program will be excluded because of the amendment’s stricter 99% notification requirement. The lawsuit further contends that Illinois has the fourth-highest estimated population of illegal aliens in the country and that the amendment will limit the federal government’s ability to help Illinois employers ensure that their workforce is legal. In essence, the lawsuit asserts that the Illinois amendment seeks to regulate a federal program and is, therefore, preempted under the Supremacy Clause of the U.S. Constitution.

Until this amendment is enjoined or the lawsuit is resolved in its entirety, the Illinois legislation will become and remain law as of January 1, 2008.