District Court Overturns Illinois E-Verify Statute

Illinois employers are once again free to enroll in and utilize the federal E-Verify program to verify the employment authorization of their employees. E-Verify is an internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship. E-Verify checks electronically the information provided by the employee on his or her Form I-9 against records contained in DHS and Social Security Administration (SSA) databases. In August 2007, Illinois amended the Illinois Right to Privacy Act to address E-Verify and limit the ability of Illinois employers to utilize the E-Verify program. Specifically, it required additional notifications and specifically prohibited employers from participating in E-Verify until the SSA and DHS databases were able to make a determination on 99 percent of the Tentative Nonconfirmation Notices issued to employers within three days. By amending its law in this manner, Illinois in effect attempted to opt out of a federal law and require the federal government to satisfy Illinois’ standards. The federal government promptly sued the state of Illinois. While the litigation was ongoing, the parties agreed to delay the implementation of the Illinois restriction. On March 12, 2009, the United States District Court for the Central District of Illinois granted the federal government’s motion for summary judgment, invalidating the Illinois law under the Supremacy Clause of the U.S. Constitution.  The court’s order permanently enjoined the state of Illinois from enforcing the invalid Act. The state may still appeal the decision.
 
United States v. The State of Illinois, No. 07-3261 (C.D. Ill. Mar. 12, 2009)