With the summer season approaching, it is important for employers to understand when they are required to complete new U.S. employment authorization forms (known as Forms I-9) for individuals returning to work after breaks in active employment, such as seasonal layoffs.
As outlined below, an employer should first determine whether an individual qualifies as a “rehired” employee. If an employee falls into this category, specific rules apply as to when a new I-9 must be completed.
Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to complete Forms I-9 for employees hired after November 6, 1986, in order to verify their U.S. employment authorization. As part of this process, an employee must present documentation (such as a passport) establishing his or her identity and right to work in the U.S.
Generally, an employee must complete Section 1 of the Form I-9 on or before his or her date of hire (defined as the first day the employee performs work for wages or other remuneration). The employer then has three business days from the date of hire to examine the employee’s documentation and complete Section 2 of the Form I-9.
When Is An Employee “Rehired”?
For an employee returning after a break in active employment, the threshold issue is whether he or she has been “rehired,” for Form I-9 purposes. If, at all times, an individual retains a reasonable expectation of resuming employment, he or she will not be deemed to have been rehired, despite an interruption in active service.
For example, when an employee returns from an approved leave of absence (such as parental, personal, or disability leave), the employee is generally considered to have had continuous employment. The same is true of an employee who regularly works season-to-season or returns after being laid off due to an anticipated, temporary lack of work. In such situations, the employee is not deemed to have been “rehired,” and the employer need not complete a new Form I-9.
While there is no bright-line rule for determining whether an employee has been “rehired,” the following factors should be considered:
When Is A New I-9 Required For A Rehired Employee?
If an individual does qualify as a “rehired” employee for Form I-9 purposes, then the following rules apply:
E-Verify And Rehires
Employers that participate in the federal E-Verify program also need to consider whether to create a new E-Verify case for a rehired employee.
If a rehired employee’s Form I-9 lists an expired identity document, and an E-Verify case has not previously been created for the employee, then an E-Verify case should be created.
On the other hand, if a rehired employee’s identity document has expired, and an E-Verify case exists for the individual, the employer may either (i) complete Section 3 of the Form I-9 (and not create a new E-Verify case), or (ii) create a new E-Verify case.
Finally, if a rehired employee’s identity document is still valid, and an E-Verify case exists for him or her, the employer need not create a new E-Verify case. (Conversely, if an E-Verify case has not been created, the employer should do so.)
Recommendations For Employers
To ensure compliance with these requirements, we recommend that employers do the following:
* * *
Please feel free to contact us if you have any questions about your business’s Form I-9 obligations. We routinely counsel employers on these issues and would be happy to help.