A Federal Court in Springfield, Illinois recently invalidated an amendment to the Illinois Right to Privacy Act, which prohibits Illinois employers from participating in the E-Verify System until certain additional qualifications have been met.

On August 13, 2007, Illinois amended the Illinois Right to Privacy Act to prohibit employers from enrolling in the E-Verify System until the Social Security Administration (SSA) and the Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative non-confirmation notices issued to employers within 3 days. At the present time, neither SSA nor DHS are able to make a determination on 99% of the tentative non-confirmation notices issued by the E-Verify System within 3 days. Therefore, the U.S. Department of Justice sued the State of Illinois to stop the Illinois Act from becoming effective on January 1, 2008. As part of the litigation, the State of Illinois and the U.S. Department of Justice entered into an agreement under which the State of Illinois would not enforce the amendment during the pendency of the litigation.

A Federal Court in Springfield, Illinois recently held that the Illinois act conflicts with the Federal statute implementing the E-Verify System. The Court determined that the U.S. Congress extended the E-Verify System as a voluntary program to all employers across the United States. The court held that the Illinois statute frustrated the U.S. Congress' purpose for extending the E-Verify System to all employers and that the State of Illinois cannot dictate to U.S. Congress the accuracy and speed standards that the E-Verify Program must meet. Therefore, the Court permanently enjoined the State of Illinois from enforcing what it determined to be an invalid act. Therefore, Illinois employers may again select to voluntarily use the E-Verify System knowing that their usage of the system will not conflict with state law.