DHS vs. State of Illinois
October 11, 2007

It’s the Department of Homeland Security (“DHS”) versus the State of Illinois in a lawsuit filed by the DHS over a recently enacted Illinois amendment to the Right to Privacy at Work Act.

At the heart of both the lawsuit and the Illinois law, is the voluntary federal program called E-Verify. This program succeeds the Basic Pilot Program which has been around since 1997, and provides employers with an internet-based way to verify if their employees are legally entitled to work in the United States. Once an employer submits their query regarding an employee, the information is then compared with records from the Social Security Administration and the DHS. The DHS says that about 93% of the queries are answered immediately or the next day. The remaining queries are labeled as “tentative non-confirmation”. In order to keep their jobs, the employee in question can chose to challenge the findings, in which case, the DHS will conduct a further investigation which may take a week or longer. While participation in the program is not mandatory, it is strongly encouraged by the DHS.

However, lawmakers in Illinois have recently made it a crime for Illinois businesses to currently use the E-Verify program. It states that it is illegal for Illinois businesses to participate in the program until the DHS can complete 99% of the queries and provide a response within three days. Abby Ottenhoff, a spokeswoman for Gov. Rod Blagojevich, justified the need for such legislation saying “[t]he Internet-based program has a less than 50 percent accuracy rate and takes 10 days to get results. Lawmakers in Illinois felt that’s too long and leaves too much room for error so they approved legislation that prohibits employers from using this database until it achieves a 99 percent accuracy rate, and enacts protections for employees.”

The DHS sees the Illinois law as a blatant, inappropriate attempt to block enforcement of federal immigration laws. Giving high-profile nature of the lawsuit, the DHS’ Secretary, Michael Chertoff personally spoke out on the issue stating, “[t]he state of Illinois has now made it illegal to comply with federal law. That’s not acceptable as a matter of the Constitution, and it’s not acceptable as a matter of our discharging our federal obligation to enforce immigration laws.” The DHS sees the Illinois law as unconstitutional because it goes against the Constitution’s supremacy clause – federal law overrules state law. Mr. Chertoff also stated that “the bar was deliberately set to such an impractically high level that it was with the understanding that it would be almost impossible to get near perfect compliance.”

The lawsuit is the first filed against a state regarding the E-Verify program and seeks to force Illinois to overturn the law and allow Illinois business to voluntarily participate in the E-Verify program.