October 2, 2007

New Illinois Law Places Broad Restrictions on Employers' Use of the Federal Government's Employment Eligibility Verification System

Holland & Knight Alert
Mark L. Shapiro

On August 13, 2007, Illinois Governor Rod Blagojevich signed into law a controversial amendment to the Illinois Right to Privacy in the Workplace Act. This amendment would prohibit employers from enrolling in the federal government’s employment eligibility verification system (EEVS), starting January 1, 2008, until the Social Security Administration (SSA) and the Department of Homeland Security (DHS) meet certain conditions on the implementation of the EEVS.

Legal Framework

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which required that three different methods of confirming employment eligibility be tested in five of seven states estimated to have the highest number of illegal aliens. In 1997 the voluntary EEVS, which was one of the three methods, was launched in California, Florida, New York, Texas and Illinois. It was later expanded to Nebraska and in 2003 Congress expanded the voluntary EEVS to employers in all 50 states.

The EEVS Procedure

The current system calls for employers’ voluntary participation in the program. However, once an employer elects to participate, it must abide by the hiring procedures set forth in the IIRIRA. So far an estimated 22,000 employers nationwide (about 750 in Illinois) have registered with DHS to use EEVS, which is an Internet-based automated system. Once registered, employers must use the system to enter information from each new employee’s I-9 Form within three days after hire. The system verifies that the name, social security number, birth date and citizenship status provided on the I-9 Form match the SSA’s records for that individual. If the SSA records match, the system checks the DHS records for the work authorization status of non-citizens.

The result is then immediately forwarded to the employer. The result can be one of the following:

1) employment authorized (meaning all records matched and the individual is either a citizen or a non-citizen with the proper work authorization)

2) SSA tentative nonconfirmation (meaning that the SSA records did not match the information provided on the I-9 Form or the SSA could not verify that the individual claiming to be a citizen was a citizen)

3) DHS verification in progress

4) DHS tentative nonconfirmation (meaning that DHS’s records show that the non-citizen is not authorized to work)

If the result shows tentative nonconfirmation, the employer must notify the employee, who then has an opportunity to try to resolve the issue with the SSA or DHS office within 10 working days. Once the employee has done so, the employer can again input the information into EEVS to verify that the issue has been resolved. If the employee fails to resolve the issue, DHS will issue a final nonconfirmation notice, after which the employer must terminate the employee or risk being subject to penalties.

Current Status of the EEVS

Currently, the voluntary EEVS, which was originally known as the Basic Pilot Program, is scheduled to expire in 2008. There have been numerous proposals introduced in Congress that seek to make the EEVS mandatory for all employers.

The EEVS has received criticism from some who claim that outdated and inaccurate information maintained in SSA and DHS databases may unfairly deny jobs to those who are authorized to work. In addition, some claim that misuse of the system could result in violations of privacy. The SSA and Congress appear to be working to resolve some of these issues.

New Illinois Law

The amendment to the Illinois Right to Privacy in the Workplace Act, which will become effective January 1, 2008, shortens the time period for DHS and SSA to make final determinations on tentative nonconfirmation notices from 10 working days, provided under federal law, to three days. Illinois employers are prohibited from enrolling in the voluntary EEVS until the SSA and DHS are able to make a final determination on 99 percent of tentative nonconfirmation notices within the three days provided by the new amendment. Because the U.S. government does not issue final determinations on 99 percent of the tentative nonconfirmation notices issued to employers within three days, as required by the Illinois statute, the Illinois statute effectively precludes employers in Illinois from enrolling in the program. Officials at the Illinois Department of Labor reportedly have advised that it interprets the amendment as prohibiting even those employers who are currently enrolled in EEVS from continuing to utilize the program beginning on January 1, 2008.

Arguably, the Illinois statute would also prohibit employers with operations in multiple states including Illinois from enrolling or continuing to participate in EEVS at all of their worksites in order to avoid violating the Illinois statute.

The United States Files Suit

On September 27, 2007, the United States sued the state of Illinois in federal court in Springfield, Illinois, seeking to declare the Illinois law, as amended, invalid and to ban its enforcement by the state. The federal government says the statute conflicts with the supremacy clause of the U.S. Constitution by imposing conditions on enrollment in the EEVS program by Illinois employers that are not required by Congress. We will issue alerts as to new developments on this issue.

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