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Federal Court Halts Illinois Law Banning E-Verify

December 6th, 2007 Posted by Amelia

A federal court has halted the implementation of a controversial new Illinois law that would make the state a haven for undocumented workers, and a potential target for terrorists.

The amendment to the Right to Privacy in the Workplace Act signed by Governor Rod Blagojevich in August, would make it illegal for employers to use employment verification software such as that provided by the Department of Homeland Security.

The free software automatically detects workers who are using forged documents, or who are committing the crime of identity theft.

The U.S. Department of Justice filed a lawsuit against the State of Illinois to halt implementation of the new law. More recently, the Department of Homeland Security joined the suit and a federal judge issued an injunction to halt implementation of the law.

Frank James, in the Chicago Tribune’s political blog “The Swamp”, quotes Homeland Security Secretary Michael Chertoff as saying, “The 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 the immigration laws.”

The Tribune also quotes Homeland Security Secretary Michael Chertoff in his blog as saying, “Could it be that the Illinois state legislature wants to prevent businesses from using the best available tools to determine whether new employees are illegal aliens? I certainly hope not, but that’s precisely what a new state law is poised to do. The recently authorized changes to Illinois’s “Right to Privacy in the Workplace Act” will place restrictions on the ability of employers in the State of Illinois to enroll voluntarily in our Department’s electronic employee verification system (E-Verify) to check the legal status of workers. This is wrongheaded. It’s also unconstitutional because it is preempted by federal law. That’s why today the Department of Justice filed a lawsuit on behalf of DHS to overturn the state law.”

While Chertoff admits that in the past the federal government hasn’t done a good job of enforcing immigration laws, he points out that limiting illegal immigration is a key to eliminating terrorism. After all, none of the 9/11 bombers were legal immigrants to the U.S.

Illinois Congressman Pete Roskam is one of the vocal opponents of amendment to the Right to Privacy in the Workplace Act. Roskam points out that in a recent sweep, the Department of Homeland Security found 23 illegal immigrants with high-level security passes to limited access areas of O’Hare Airport. All were employees of Ideal Staffing Solutions of Bensenville, Illinois. In addition, the investigators uncovered 100 fake security badges in the company’s possession.

Roskam is one of the original co-sponsors of SAVE, the Secure American with Verification and Enforcement Act of 2007. This bipartisan law would help secure U.S. borders by requiring all employers to participate in an employee verification system. In addition, the law would increase the number of border patrol agents and provide stronger enforcement of existing immigration laws.

The bill has widespread approval, with nearly 50 Democrats joining Roskam in cosponsoring it.

Illinois is bucking the trend on the issue of employment rights for illegal immigrants. While 13 states including Arizona have recently enacted legislation that requires at least some employers to use the federal E-verify system to weed out individuals using forged documents or engaging in identity theft, the Illinois governor seems determined to keep them.

This puts many Illinois employers in a tight spot. If they inadvertently employ an undocumented worker, they can face fines of up to $200,000 per employee. However, the tough new state law means that effective January 1, 2008, they can’t sign up for the free software from the Department of Homeland Security that would all but eliminate this problem.

A loophole in the state law permits employers to sign up for E-verify before January 1, 2008 and continue to use it after the new law goes into effect. However, employers must take expensive training measures including training for every employee, and advising all applicants that their information will be subject to verification.

The federal immigration legislation that was defeated earlier this year would have required all employers to use E-Verify to confirm that new employees were legally entitled to work in the U.S., and were using their own identity.