Clarification on New E-Verify and I-9 Compliance Requirements in Illinois

Illinois first included language addressing the use of E-Verify in the Right to Privacy in the Workplace Act in 2008, with an amendment in 2010. Discussions and proposals for a second amendment to the Act regarding the use of E-Verify in Illinois have been ongoing since 2023. As of January 1, 2025, Illinois employers are required to follow new regulations under Public Act 103-0879, which amends the Right to Privacy in the Workplace Act and alters the rules for employers using E-Verify and Form I-9 compliance.

Over the past few months, there has been some confusion regarding the use of E-Verify during employment in Illinois. Some employers within the state mistakenly believe that its use is entirely prohibited unless explicitly mandated by state or federal law.

Clarification from IDOL on using E-Verify

The Illinois Department of Labor (IDOL) has clarified that the law does not prohibit private employers from using E-Verify. Illinois employers are permitted to voluntarily use E-Verify systems if they follow the requirements outlined in the Act. The purpose of revising the Right to Privacy in the Workplace Act is to ensure that E-Verify is used fairly and transparently, not to prohibit its use.

However, IDOL does clarify that “prior to enrolling in the E-Verify System, employers are urged to consult the Illinois Department of Labor’s website for current information regarding the accuracy of the program.” IDOL has also published an FAQ on its website regarding the Act, addressing the impact of E-Verify in Illinois in response to policy clarification requests.

A surface-level overview of SB0508

The new regulations for the Right to Privacy in the Workplace Act, or SB0508, are in effect as of January 1, 2025. They set new boundaries for employers when using E-Verify and state explicit rights for employees involved. Here are a few key points employers in Illinois should remain aware of.

Prohibited practices and employer guidelines

Work authorization beyond federal standards: Employers cannot impose work authorization verification or re-verification requirements greater than those required by federal law.

Prescreening applicants: E-Verify cannot be used to decide eligibility for a job or to prescreen applicants prior to hiring and/or completing an I-9.

Tentative non-confirmations: Employers cannot act on tentative non-confirmations without following federal procedures.

Guidelines for non-confirmations: Employers must follow specific state and federal guidelines if they receive tentative non-confirmation notifications to ensure fair treatment and due process for all employees.

State penalties for non-compliance

Willful violations of the law are subject to civil penalties:

• Minimum of $2,000 and up to $5,000 for first-time violations.
• Minimum of $5,000 and up to $10,000 for subsequent violations.

Employer notification requirements

In addition to restrictions on implementing E-Verify, employers are required to follow certain guidelines throughout the process and when presenting findings. Employers are required to:

• Inform employees about any issues in writing and include specific details.
• Allow employees a “reasonable amount of time” to correct discrepancies.
• Allow employees representation in meetings or proceedings related to findings.
• Inform current employees within 72 hours if a federal I-9 audit notice is received.

The law also notably affects companies located in Illinois and any employer with employees working in Illinois. State-level restrictions do not extend to employees working outside of Illinois for an Illinois-based company. To read all the regulations and guidelines of the changes, take a closer look here.

What this means for all employers using E-Verify

Several of the law’s provisions mirror guidelines that have always been part of the E-Verify program. However, employers should review their practices to ensure compliance with state and federal requirements. Although this law applies to employers and employees in Illinois, more states may follow the lead and provide more explicit guidelines later. In or out of state, meeting with your legal counsel to discuss the best practices and procedures for using E-Verify can help you foster a culture of transparency and remain compliant with the law.

This content is for informational purposes only and shall not constitute legal 
opinion or advice. Consult your legal counsel to ensure compliance.