Mark A Ivener, A Law Corporation

Illinois E-Verify Statute Struck Down as Unconstitutional

The U.S. District Court for the Central District of Illinois has overturned a statute enacted by Illinois that prohibited employers from enrolling in any employment eligibility verification systems “until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law.”

The court said that Illinois’s statute “frustrates Congress’ purpose by prohibiting Illinois employers from participating in the Federal Program unless the Federal Program meets Illinois’ standard for accuracy and speed.” Illinois cannot “dictate to Congress the standards that federal programs must meet, the court said, noting that “this clearly frustrates the Congressional purpose of making the Federal Program available to all employers. The Illinois Act is invalid under the Supremacy Clause.”

Illinois had argued that its statute did not frustrate the federal verification program because Congress had established it as a test program, and the federal government has been able to test the program for years. “This is no answer,” said the court. “Even if Congress established the Federal Program as a test program, Congress is entitled to set the terms of the testing and the length of testing, not Illinois. Congress determined that all employers in the fifty states would be allowed to participate. Illinois cannot say no, or require the federal government to meet Illinois’ standards.”

The court concluded: “Section 12(a) of Illinois Public Act 95-138 is hereby declared to be invalid in violation of the Supremacy Clause of the United States Constitution, and the State of Illinois is permanently enjoined from enforcing this invalid act. All pending motions are denied as moot.”

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.