Immigration Update: Illinois' Attempt To

Restrict Employers' Use Of The Federal E-Verify Program Is Blocked

A federal judge blocked the State of Illinois' implementation and enforcement of its new E-Verify Law, which would have imposed restrictions on any employer enrolled in the Department of Homeland Security's (DHS) Basic Pilot Program/E-Verify (Public Law 95-138). Based on the judge's ruling, the State has until February 15, 2008 in which to repeal its new law that was supposed to take effect on January 1, 2008. Based on announcements made by government officials, the State has acquiesced to the judge's ruling and will not enforce aspects the new law. Legislative leaders are already working on alternative legislation that would not run afoul of federal law.

Employers need to be aware, however, that some aspects of the new Illinois law were not part of the federal litigation and, as such, they went into effect on January 1, 2008. In particular, the new law updated the Illinois Human Rights Act (IHRA) to prohibit employers that use the Basic Pilot Program/E-Verify from refusing to: Hire, promote, renew employment, select from training or apprenticeship, discharge, discipline, affect the tenure, or affect the privileges or conditions of employment without following the procedures under the Basic Pilot Program. Thus, IHRA now makes it a civil rights violation to take these adverse actions against an employee without first following various procedures available through the Basic Pilot Program (e.g., asking the employee to fix any information issues with the local Social Security office, etc.). It is to date unclear whether this new provision in the IHRA applies to decisions made by employers because of work authority concerns. Unfortunately, the new law is poorly drafted and vague in these regards, making it difficult to understand an employer's compliance requirements. Future regulations or guidance issued by the Department will ideally clarify this ambiguity.

In addition to the amendments to the IHRA regarding participants in the Basic Pilot Program/E-Verify, other sections of Public Law 95-138 that were not overturned and, as a result went into effect on January 1, 2008, include the following requirements:

An enrolled employer must:

•· confirm via Department of Labor form that Basic Pilot training materials were received;

•· become familiar with and comply with the provisions in the Basic Pilot Manual;

•· attest that Basic Pilot Computer Based Tutorial has been completed;

•· prominently display/post notices from: DHS - indicating that employer is enrolled in the Basic Pilot Program; the Office of Special Counsel (OSC) regarding anti-discrimination; and the Illinois Department of Human Rights (IDHR) regarding anti-discrimination information;

•· notify all prospective employees at the time of application that the company uses an employment verification system for immigration enforcement purposes;

•· use only the information obtained through the Basic Pilot Program to confirm the new employee's employment eligibility; and

•· provide the employee with a referral letter and contact information for the appropriate agency to contact in order to resolve a discrepancy when an employer receives a tentative non-confirmation through the Basic Pilot Program.

Some of these requirements are part of the federal process for handling inquiries through the Basic Pilot Program, but the State of Illinois has now increased the burden on employers to perform additional tasks than are required under the federal program. Employers currently enrolled or contemplating enrollment in the program are advised to review the new state requirements thoroughly and comply with the provisions.

WP&S will continue to update this story as the legislature seeks other means to restrict employers from using work authority verification systems. Questions regarding any immigration related matters can be directed to Senior Attorney Kevin Mosher of WP&S's Immigration Response Team at (952) 746-1700.