On March 12, 2009, the District Court for the Central District of Illinois granted the federal government’s motion for summary judgment in the matter concerning the use of E-Verify in the state of Illinois.

E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) is an online system operated jointly by the Department of Homeland Security (“DHS”) and the Social Security Administration (“SSA”) in which participating employers can check the identity and work status of new hires online by comparing information from an employee's Form I-9 against SSA and DHS databases.

On August 13, 2007, the state of Illinois enacted section 12(a) of Illinois Public Act 95-138 which amended the Illinois Right to Privacy Act to prohibit employers from enrolling in any Employment Eligibility Verification System, including the Basic Pilot program, until the SSA and the DHS databases meet certain very stringent performance standards. In September 2007, the federal government sued the state of Illinois seeking to stop implementation of the Illinois law. The law was scheduled to take effect on January 1, 2008; however, Illinois agreed not to enforce the law until an outcome had been reached in the litigation of this matter.

By granting summary judgment in favor of the federal government, the District Court has ruled that the Illinois statute prohibiting employers within the state from using the DHS’ E-Verify program is invalid under the Supremacy Clause of the U.S. Constitution. The District Court further ruled that the Illinois statute negates Congress’ statutory purpose of making E-Verify available to employers in all fifty states, by prohibiting employers in Illinois from participating in E-Verify.

As a result of this ruling, enrollment in E-Verify is now a voluntary option for Illinois employers, with very limited exceptions. Federal contractors and subcontractors will be required to begin using the E-Verify system starting May 21, 2009. Federal contractors subject to this requirement would be compelled to enroll in E-Verify and use the system for all persons hired during the term of the contract (all new hires) and all existing employees assigned to the contract, other than employees hired before November 6, 1986. This requirement is in addition to the “normal” requirement placed on all employers within the United States to complete Form I-9 Employment Eligibility Verification, for all newly-hired employees.

There are three exceptions in which federal contractors would not be required to use E-Verify. In these cases, the subcontractor working for the federal contractor would also be exempt from the E-Verify requirement. The three federal contractor exceptions include:

  1. Prime contracts for less than $100,000;
  2. Contracts for commercially available off-the-shelf (COTS) items, which includes nearly all food and agricultural products; and
  3. Contracts less than 120 days in duration.

There are eleven states that currently require the use of E-Verify: Arizona, Colorado, Georgia, Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina and Utah. There is currently legislation pending to alter the E-Verify requirements in both Oklahoma and Rhode Island.

Additionally, four states that currently do not have E-Verify requirements also have legislation pending to implement such requirements. These states include: Arkansas, Nebraska, Indiana and Wyoming.

For more information regarding compliance issues relating to E-Verify, please see http://www.dykema.com/publications/docs/workplaceimmig.pdf.