The federal E-Verify program allows employers to voluntarily enroll in the federal government’s Internet-based system for verifying the employment authorization documents submitted by new hires. However, some groups have denounced the E-Verify program because, they argue, the databases supporting the system, which are maintained by the Social Security Administration (“SSA”) and the Department of Homeland Security (“DHS”), are not accurate enough. An inaccuracy in the databases could result in the denial or termination of employment for workers who are actually authorized to work in the United States.

Because of the perceived database inaccuracies, the Illinois legislature, in 2007, enacted Section 12(a) of Illinois Public Act 95-138 (the “Illinois Act”) which made it unlawful for Illinois employers to enroll in the federal E-Verify system until such time as the databases supporting the E-Verify system reached a heightened level of accuracy stated in the Illinois Act. The Illinois Act was scheduled to go into effect on January 1, 2008. Before the Illinois Act became effective, however, the federal government filed a lawsuit seeking to have the Illinois Act declared invalid. Illinois agreed not to enforce the law during the pendency of the litigation

On March 12, 2009, agreeing with the federal government, the United States District Court for the Central District of Illinois ruled that the Illinois Act is invalid under the Supremacy Clause to the U.S. Constitution because the Illinois Act conflicts with the federal Illegal Immigration Reform and Immigrant Responsibility Act (the “Federal Act”). United States v. Illinois, Case No. 07-3261 (C.D. Ill. Mar. 12, 2009).

The Court’s Ruling

The Federal Act provides that any employer may enroll in the E-Verify system. The federal government argued that the Illinois Act, which prohibited Illinois employers from currently enrolling in E-Verify, was in conflict with the Federal Act and, therefore, was invalid under the Supremacy Clause. The U.S. Supreme Court has stated that a state law is invalid under the Supremacy Clause if the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Now, after more than a year into the litigation, the District Court rejected Illinois’ argument that the Illinois Act did not frustrate the purposes of the E-Verify system because E-Verify was established only as a test program and the federal government has been able to test the program for years. The Court stated that regardless if E-Verify is a test program, “Congress is entitled to set the terms of the testing and the length of the testing, not Illinois.” The Court found that because Congress had determined that all employers would be allowed to participate in E-Verify, “Illinois cannot say no, or require the federal government to meet Illinois’ standards.” The Court ruled, therefore, that the Illinois Act’s requirement that the E-Verify program meet its heightened standards before Illinois employers could enroll in the program “clearly frustrates the Congressional purpose of making [E-Verify] available to all employers” and, accordingly, ruled that the Illinois Act was invalid under the Supremacy Clause. Illinois has 30 days from the ruling to file an appeal, if it chooses to do so.

Looking Ahead

Employers in Illinois had been somewhat in limbo regarding whether or not to enroll in E-Verify while awaiting the Court’s decision. Now that the Court has ruled, and assuming Illinois does not appeal the decision, Illinois employers can feel free to enroll in E-Verify (if they had not already) without fear that they will spend time and money training their staff on the system, only to have the Court uphold the Illinois Act, which would then have required them to cease using E-Verify.

However, even though the Court invalidated the Illinois Act, employers still have concerns about enrolling in E-Verify. Those concerns include:

  • Training staff to properly use the system and making sure that it is used appropriately (especially if such training goes to waste if a new Administration scraps E-Verify). A recent survey showed that as many as 40% of employers using E-Verify have used it to pre-screen potential employees or to screen current employees, both of which are improper uses and can expose the employer to liability (E-Verify may only be used to screen new hires, after they have been offered employment).
  • Only certain documents (a subset of the acceptable I-9 documents) may be used to verify employment authorization under E-Verify. For example, only identity documents that contain a photograph may be accepted. This may exclude some workers who otherwise could demonstrate work authorization.
  • Surveys show that a large number of discrepancies still may exist in the SSA and DHS databases, which can result in authorized workers being found to be “nonconfirmed” and denied employment. The federal government continues to make improvements, but the system is not 100% accurate.
  • United States Citizenship and Immigration Services (formerly, the INS) can monitor an employer’s tentative and final nonconfirmations (which occur when an employee’s documents do not clear the E-Verify system) and may share that information with the enforcement arm of DHS, which could result in I-9 audits, raids, or other government investigations against the employer and/or its employees.
  • Employers who continue to employ an employee after a final nonconfirmation will be presumed to have knowingly employed an unauthorized worker if it turns out the employee actually is unauthorized to work in the US. It is the employer’s burden to rebut the presumption.
  • When enrolling in E-Verify, employers must agree to allow periodic inspection of E-Verify and I-9 documents without the normal statutory notice period and without DHS obtaining a search warrant.

On the other hand, E-Verify presents some positives for employers as well:

  • Enrolled employers greatly reduce the likelihood of receiving ”No Match” letters from the SSA or DHS.
  • Employers who retain workers that the E-Verify system confirms are authorized to work in the US are entitled to a presumption that they have not knowingly hired unauthorized workers, even if it turns out the employee, in fact, is not authorized to work in the US.
  • The E-Verify system contains the actual photographs of the individual that should appear on many types of acceptable immigration documents, making verification that much more reliable.
  • Employers do not have to rely solely on the “facial validity” of a presented document. The system can detect false documents if the name/numbers/photos don’t match, again, leading to more accurate verification.

Employers, therefore, are encouraged to consult legal counsel before enrolling in E-Verify to determine if enrolling makes sense for their organization.