Illinois Poised to Add to the Already Complex Web of Regulations Employers Face When Using the Federal E-Verify Program
October 15, 2009
By: Mark Wilkinson
The State of Illinois recently amended legislation that imposes requirements on employers using the E-Verify program. While the amendment does not take effect until January 1, 2010—and it will not significantly alter the substantive obligations Illinois employers currently face when using E-Verify—it serves as an important reminder of the added layer of regulation associated with the use of E-Verify in Illinois.
E-Verify is the federal government program that allows employers to electronically confirm an employee’s authorization to work in the United States. For most employers, participation in E-Verify is voluntary. The Department of Homeland Security, however, recently mandated that federal contractors holding contracts valued at $100,000 or more must now use E-Verify; and so must federal subcontractors with contracts worth at least $3,000.
In order to participate in E-Verify, employers must sign an agreement with the Department of Homeland Security and Social Security Administration that commits the employer to:
- prominently post notices supplied by the DHS;
- supply the DHS and SSA with the names, titles, addresses, and telephone numbers of the employees that will administer the employer’s participation in E-Verify;
- ensure that its staff becomes familiar with and complies with the most recent version of the E-Verify Manual;
- complete the E-Verify Tutorial before using the program (and take refresher courses);
- continue to comply with the current Form I-9 employment verification procedures, except that employers using E-Verify must now only accept List B identity documents that contain a photo and must photocopy permanent resident cards and employment authorization documents;
- initiate the E-Verify process for new employees within three business days after their start date (federal contractors must also E-Verify any existing employees that perform work on the federal contract);
- not use E-Verify to screen applicants or newly hired employees who have not yet completed the Form I-9;
- follow certain procedures when a nonconfirmation occurs, such as providing notice to employees, providing referral instructions to the agency that employees must contact to dispute the discrepancy, and refraining from taking any adverse action against employees while they dispute the nonconfirmation or when a tentative nonconfirmation arises;
- use E-Verify for all new employees and not selectively verify only certain employees;
- record on the Form I-9 the verification number E-Verify generates or print the verification screen and attach it to the Form I-9;
- take steps to safeguard E-Verify information, such as maintaining password protected files and ensuring that only employees administering E-Verify have access to this information; and
In 2008, Illinois passed legislation that restricted employer participation in E-Verify unless the program met certain standards for speed and accuracy. This legislation came under scrutiny from the federal government and in March 2009, a federal court found a portion of the legislation invalid under federal law. The court left intact other provisions of the Illinois legislation that largely overlap with federal requirements, save for a few conditions that require Illinois employers using E-Verify to:
- complete a form attesting (i.e., declaring under penalty of perjury) that the employees administering the employer’s participation in E-Verify have been properly trained and that it will post proper notices;
- prominently post a notice advising employees that the employer is enrolled in E-Verify and also post an anti-discrimination notice published by Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices; and
- notify all prospective employees at the time of hire that the employer participates in E-Verify and the results may be used for immigration enforcement.
The Illinois amendment taking effect in 2010 contains the same basic obligations for employers described above, but also makes it a violation of the Illinois Human Rights Act to fail to follow the E-Verify program’s standards and procedures if the departure results in an adverse employment action. The amendment similarly removes any doubt that the State of Illinois, along with the federal government, will seek to enforce E-Verify compliance. Employers should understand that the obligations imposed by E-Verify only affect federal contractors who must use the program or those employers that voluntarily choose to participate. However, as the government continues to shift enforcement of immigration laws to the workplace, some expect that E-Verify will eventually become mandatory for all employers in the future. We will continue to monitor developments related to E-Verify and update you accordingly.
For questions regarding E-Verify compliance, please contact Ed Druck, Mark Wilkinson, or any Franczek Radelet attorney.
More Information
- Edward N. Druck
end@franczek.com
312.786.6128 - Mark S. Wilkinson
msw@franczek.com
312.786.6171