Will E-Verify Be Banned in Illinois?

By Allison Sues, JD, Senior Employment Law Counsel
Published October 8, 2024

As previously reported, Illinois’ most recent amendments to the Illinois Right to Privacy in the Workplace Act (“IRPWA”) place significant protections on employees related to the I-9 identity and work authorization process. The law makes clear that effective January 1, 2025, both private and public employers must take proactive notification steps if there is a discrepancy in an employee’s employment authorization information or if the employer is subject to an I-9 inspection. While less conclusive, a fair reading of the Act’s new language indicates that it bans employers from voluntarily using E-Verify in the I-9 process. 

By way of background, the Immigration Reform and Control Act of 1986 prohibits employers from hiring and employing individuals who are not authorized to work in the United States and requires employers to complete a Form I-9 for every employee verifying the employee’s identity and work authorization. E-Verify is a United States Department of Homeland Security website that allows employers to further vet the work eligibility of individuals by comparing information on an employee’s Form I-9 to data from various U.S. governmental records. While federal law requires certain federal contractors to use E-Verify, other employers may also voluntarily opt into using E-Verify in their I-9 process. State governments across the country have had a mixed reaction to E-Verify, with some states requiring its use in certain instances and other states, including Illinois, limiting or discouraging its use. In 2007, Illinois passed a law expressly prohibiting Illinois employers from using E-Verify, but the courts struck it down as violating the federal Supremacy Clause. 

Now, many believe that the newest amendments to IRPWA again seek to prohibit an employer’s voluntary use of E-Verify. As evidence of this, commentators cite the following: 

• The Amendments state, “Nothing in this Act shall be construed to require an employer to enroll in any Electronic Employment Verification System, including the E-Verify program … beyond those obligations that have been imposed upon them by federal law.”
• The Amendments also state, “An employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law.”

In tandem, this statutory language indicates that employers who are not required to use E-Verify shall not use E-Verify, as it is a greater work authorization than what is required by the Form I-9, alone. Further, non-statutory language on the Illinois legislature’s website providing a synopsis of these Amendments states that the new law “[p]rovides that unless otherwise required by State or federal law, an employer shall not voluntarily enroll in the E-Verify program … .”  

Employers who currently voluntarily use E-Verify may want to err on the side of caution and reevaluate their I-9 process given the stiff penalties for violations of the IRPWA. We are hopeful that the Illinois Department of Labor will shed further light on this interpretation of the IRPWA, and we will keep you posted of any new developments in this area. 

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