A Tool We Need

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 (PDF 13 pages - 82 KB).

E-Verify (formerly known as Basic Pilot) is an online system that allows employers to check whether a new worker’s name and Social Security number are valid and the person is authorized to work in our country. The system is easy to use and free of charge. It’s also popular, with more than 23,000 companies enrolled nationwide, including more than 800 in Illinois.

And you can see why: E-Verify enables employers, in real time, to determine if the name, Social Security number, and other identity information that a new hire provides for his or her I-9 form match information in federal databases, giving them certainty that the people they’re hiring are authorized to work in the U.S. It also will allow employers to compare photos on ID documents provided by a new hire against the photos in state or federal records, thus preventing the use of fraudulent or stolen documents.

Why, then, would the State of Illinois want to prevent employers from using this valuable tool? Critics in the legislature claim that E-Verify takes too long, contains inaccurate data, and might cause workers to be wrongfully terminated. Some also complain that employers might use it to discriminate against citizens or legal immigrants on the basis of their ethnicity.

Let’s take these one by one.

• First, in 90 percent of cases, E-Verify returns an initial response within seconds. That seems pretty fast to me.
• Second, while I’ll be the first to admit that no system is perfect, the data in E-Verify isn’t “inaccurate” – instead, it reflects the data in Social Security Administration and DHS databases. And this actually results in a benefit to employees: E-Verify gives people notice that they might have to correct their information in our databases if the government's records are wrong because of things like a transposed number or misspelled name. This is important because it helps ensure that their Social Security benefits are properly credited.
• Third, employers are not allowed to fire a worker on the basis of an initial E-Verify check. In fact, federal law explicitly states that no worker can be fired until a final determination is made concerning his or her work eligibility.
• Finally, the law requires that employers use the system in the same way for all their new hires, and employers that use the system sign an agreement that says they will treat everyone the same, regardless of race, ethnicity, or national origin.
  

These are all important aspects of the program. But there is a larger issue at stake with the Illinois law. The American people have been loud and clear about their desire to see our nation’s immigration laws enforced. We are taking aggressive steps to do that – increasing worksite enforcement cases and bringing serious criminal penalties against employers who hire illegal aliens. We’ve also sharpened our existing tools, and, yes, we’ve given employers better tools like E-Verify. But we will not succeed if we are stopped at every turn by lawsuits and legislation that frustrate, slow down, or attempt to derail our efforts.

Why now? Many Illinois businesses have already signed up for E-Verify, and others may want to. We’ve asked the Department of Justice to file this suit because those businesses should have certainty that the federal program they’re relying on won’t land them in trouble with Illinois.

Of course, states are free to pass laws that they believe are in the best interests of their citizens. But when those laws interfere with my Department’s ability to uphold and enforce our nation’s immigration laws, or they deny employers tools they badly need and have asked us to provide, then we are fully prepared to fight for what we believe is right and necessary.

Michael Chertoff