E-Verify again an eligibility verification option for Illinois employers

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. They argue that the databases supporting the system, which are maintained by the Social Security Administration (SSA) and the U.S. Department of Homeland Security (DHS), are not accurate enough—and inaccuracies in the databases could result in denying work authorization to people who are in fact eligible to work in the United States.

Because of those perceived database inaccuracies, the Illinois Legislature in 2007 enacted Section 12(a) of Illinois Public Act 95-138, which made it unlawful for Illinois employers to enroll in the federal E-Verify system until the databases supporting it reached a heightened level of accuracy.

Feds challenge Illinois

The Illinois law was scheduled to go into effect on Jan. 1, 2008. Before it became effective, however, the federal government filed a lawsuit seeking to have the act declared invalid. Illinois agreed not to enforce the law while it was being litigated.

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

The court reasoned that because the IIRIRA provides that any employer may enroll in the E-Verify system, the prohibition against Illinois employers enrolling in E-Verify conflicted with federal law and was invalid under the Supremacy Clause.

‘Illinois cannot say no’

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.”

Employers in Illinois had been in limbo regarding whether to enroll in E-Verify while awaiting the court’s decision. Now that the court has ruled (and assuming Illinois does not appeal), Illinois employers can enroll in E-Verify without fear that they will spend time and money training their staffs on the system, only to have the court uphold Section 12(a), which then would have required them to cease using E-Verify.

The downside of E-Verify

However, even though the court invalidated the Illinois law, employers still have concerns about enrolling in E-Verify:

  • They must train staff to use the system appropriately. E-Verify may be used to screen new hires only after they have been offered employment. It may not be used to screen existing employees.
  • Only certain documents (a subset of the acceptable I-9 documents) may be used to verify employment authorization under E-Verify. This may exclude some workers who otherwise could demonstrate work authorization.
  • Although the federal government continues to make improvements, discrepancies still exist in the SSA and DHS databases. That could result in authorized workers being found to be “nonconfirmed” and denied employment.
  • U.S. Citizenship and Immigration Services (USCIS) 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 its employees.
  • Employers that 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 United States.
  • 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.

E-Verify pluses

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

  • Employers greatly reduce the likelihood of receiving “no match” letters from the SSA or DHS.
  • If an employer relies on E-Verify to confirm the employment eligibility of a worker, it is entitled to a presumption that it has not knowingly hired unauthorized workers. That’s true even if it turns out the employee was not, in fact, authorized to work in the United States.
  • The E-Verify system contains the actual photographs of the individual that should appear on many types of acceptable immigration documents, making verification more reliable.
  • Employers do not have to rely solely on the “facial validity” of a presented document. The system can detect false documents if names, numbers or photos don’t match.

Advice: Consult your attorney before enrolling in E-Verify to determine whether it makes sense to do so.