The U.S. District Court for the Central District of Illinois recently struck down the Illinois state law that prohibited employers from enrolling in the E-Verify program in Illinois. E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

The Illinois law prohibited employers from enrolling in E-Verify until the program was able to make a determination within 3 business days on 99% with respect to tentative nonconfirmation notices. (A tentative nonconfirmation notice indicates that the E-Verify system cannot confirm the employee is authorized to work and that secondary verification is required.) In striking down the law, the Court stated that the Illinois law "frustrates Congress' purpose by prohibiting Illinois employers from participating in the Federal Program unless the Federal Program meets Illinois' standard for accuracy and speed….This clearly frustrates the Congressional purpose of making the Federal Program available to all employers."

The Court determined that under the U.S. Constitution's supremacy clause, only Congress is entitled to set the terms and the length of the testing of the program. The Court further commented that "Illinois cannot say no, or require the federal government to meet Illinois standards." While the lawsuit was ongoing, Illinois agreed not to enforce the law. Based on the Court's decision, Illinois employers will be able to continue using the E-Verify program, if they wish.