DOJ Bid to Preempt Illinois E-Verify Law Risks Hit to All States

State laws governing employers’ E-Verify use are in the crosshairs of a Justice Department legal challenge focused on Illinois that could spill over, even to red-state laws aligned with Trump administration priorities.

The DOJ is arguing US immigration statutes preempt an Illinois law restricting employers’ use of the electronic verification tool offered by the federal government. But its field preemption claims could be read as saying federal statutes override all state laws touching on the topic, including those seeking to prevent hiring of undocumented immigrants by requiring employers to use E-Verify, employment lawyers said.

“The reach of the argument is that states have no role in this,” said Muzaffar Chishti, senior fellow at the Migration Policy Institute.

President Donald Trump has ramped up immigration-related arrests and deportations, while canceling the protected status and work authorizations of hundreds of thousands of refugees. States have a limited immigration policy role, but workplace law is one area where both red and blue states can affect the fate of undocumented workers.

Chishti called the DOJ’s argument contradictory, given the Trump administration urged states such as Florida and Texas to aid the federal government’s aggressive immigration enforcement.

“Contradictions are not foreign to this administration, or to any administration for that matter,” Chishti said.

Like California and Illinois, some Democratic-leaning legislatures have passed laws aimed at protecting workers from immigration-related discrimination or retaliation on the job—most recently Washington state earlier this year.

Nine states with Republican-leaning legislatures have enacted requirements that some or all private-sector employers use E-Verify for new hires. More than a dozen states considered new mandates this year but largely rejected them amid business group opposition. Montana enacted a new law requiring employers to check new hires’ work authorization, but left them the option to use either E-Verify or form I-9, in line with federal requirements.

Challenges ‘Could Blossom’

The DOJ is challenging the Illinois law that took effect Jan. 1 banning employers from checking existing employees’ immigration status through E-Verify. It also requires they notify employees if federal authorities inform them of an upcoming I-9 audit or flag particular employees as potentially unauthorized.

Pending legislation (SB 2339) would bar Illinois employers from firing workers based solely on a notice from an agency other than the Department of Homeland Security that their identification documents might be fake, such as the IRS or Social Security. The employer would have to notify the affected employee and give them information about their time frame for responding.

The bill also would authorize “interested party” lawsuits against employers for alleged violations, including claims brought by unions or advocacy groups.

The Illinois law is preempted in multiple ways by the federal Immigration Control and Reform Act as well as the Immigration and Nationality Act, the DOJ says in its lawsuit.

The department argues portions of the Illinois law not only conflict with federal law’s goal of dissuading employers from hiring undocumented immigrants, but that Congress reserved regulation of work status verification generally and E-Verify specifically to the federal government.

The state told the court in an Aug. 4 brief the federal statutes’ language doesn’t support field preemption and that there’s no evidence the Illinois law conflicts with their purposes.

Federal law preempting an entire field is rare, and it’s “especially unlikely here, where the challenged provisions” of the Illinois law “govern the relationship between employers and employees, a field traditionally occupied by state law,” the states’ attorneys wrote.

The Justice Department didn’t respond to a request for comment on the Illinois case.

Range of Decisions

Some courts have favored states’ ability to legislate on immigration and the workplace, regardless of whether the resulting laws favor undocumented employees.

The US Supreme Court in 2011 upheld an Arizona law requiring private-sector employers to use the federal E-Verify system to check each new hire’s work authorization. On the other end of the policy spectrum, the US Court of Appeals for the Ninth Circuit in 2019 upheld portions of a California law protecting workers from being swept up in workplace immigration audits or raids without notice or chance to respond.

By contrast, a federal district court blocked an earlier attempt by Illinois to ban employers from using E-Verify until federal agencies could meet certain parameters of speed and accuracy. The court in 2009 found federal statutes preempted that law.

“It is an area where there is federal involvement, so there are going to be limits” to what state lawmakers can do, said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund. Still, more states have the legal right to limit how employers use E-Verify and ensure employees get appropriate notices, like in California and Illinois.

“All of that should be permissible, mainly because E-Verify is of course voluntary” under federal law, he said. “There’s no conflict with federal law.”

A decision overturning the Illinois law and finding field preemption of state laws involving workplace immigration issues would likely inspire more lawsuits challenging other state laws, including the red-state E-Verify mandates, said Bruce E. Buchanan, an attorney with Littler Mendelson PC.

The DOJ “seems to be making some broad arguments,” he said, pointing to DOJ’s field preemption claim. “It could blossom, and I don’t think that’s really what the Trump administration wants.”

A DOJ attorney said during an Aug. 12 court hearing the department isn’t necessarily arguing that any and all state laws touching on E-Verify should be preempted, but that it “depends on the scenario.”

Even without preemption, the Illinois law and follow-on legislation pose compliance challenges and legal risks for employers, especially small businesses, said Noah Finley, state director for the National Federation of Independent Business.

“Putting all this red tape around what ultimately is a federal issue, the state is making it harder for small business owners to remain compliant with the law,” he said.

The Illinois case is United States v. State of Illinois, N.D. Ill., No. 1:25-cv-04811.