Immigration Services

Illinois Act Restricting Participation in E-Verify is Found Unconstitutional
March 27, 2009

U.S. District Court for the Central District of Illinois recently found the provision within Illinois Act prohibiting employers from using E-Verify to be unconstitutional.  Therefore, Illinois employers are allowed to participate in the E-Verify program.

What is E-Verify?

The E-Verify program is operated by U.S. Citizenship and Immigration Services (USCIS).  Employers that participate in the E-Verify program use the program to verify employment authorization of new hires.  This program is used in addition to compliance with I-9 regulations.  Employers submitting employee identification information will receive either confirmation that the new hire is authorized to work in the U.S. or a “tentative nonconfirmation notice” (TNC), indicating that the E-Verify program can not work authorization of the new hire.  In the latter situation, employers must notify the new hire of the tentative nonconfirmation notice and how to pursue secondary verification.  For more information on the E-Verify program, please visit the E-Verify page on USCIS’ website.

What is the Illinois Act?

On August 13, 2007, Illinois added the Illinois Act to amend the Illinois Right to Privacy Act.  The Illinois Act stated:

Employers are prohibited from enrolling in any Employment Eligibility Verification System including the Basic Pilot Program . . . [now known as E-Verify], until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law.

Illinois Pub. Act 95-138, Sec. 12(a), codified at 820 ILCS 55/12(a).

The Illinois Act became effective on January 1, 2008.  The U.S. brought an action against Illinois to stop the Illinois Act from becoming effective.  The parties agreed to not enforce the Illinois Act during the pendency of this litigation.

U.S. District Court’s Decision

U.S. District Court for the Central District of Illinois found the Illinois Act unconstitutional and, therefore, invalid, under the Supremacy Clause. U.S. v. The State of Illinois, U.S. District Court for the Central District of Illinois, No. 07-3261, March 12, 2009.  In its decision, the Court identified that under the Supremacy Clause, state laws are invalid if the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  Hines v. Davidowitz, 312 U.S. 52, 67 (1941).  Id. In this case, the Court found that the Illinois Act frustrates Congress’ purpose by prohibiting Illinois employers from participating in the E-Verify program unless the E-Verify program meets Illinois’ standard for accuracy and speed.  Id.  In its decision, the Court determined that “Illinois cannot dictate to Congress the standards that federal programs must meet.”  Id.  Further, the Court determined that this clearly frustrates the Congressional purpose of making the E-Verify program available to all employers.  Id.

For any questions regarding this decision, please contact us.