In conducting an I-9 audit this week, the following question arose: If a former employee is rehired, does the employer need to fill out a new Form I-9? Does the employer need to E-verify him again? Does it matter if the employee’s identity document is still valid?
This is the situation:
Employee was hired in 2014. Employer properly completed an I-9 and created an E-verify case when employee was hired. Employee quit in 2015. Employer stored the original I-9 in a binder for terminated employees. Employee is now rehired in 2016. The identity document he used in 2014 is still valid.
Does the employer have to complete a new Form I-9? Does the employer have to E-verify this employee again? Does it matter if the identity document the employee presented for the original I-9 is now expired?
According to USCIS, “if you rehire a former employee within three years of his previous hire date, you may rely on the information on his previous Form I-9.“
So, no the employer would NOT have to complete a new I-9 for an employee rehired within 3 years of his first date of hire. The employer would only have to complete the “rehire” portion of Section 3 of the original Form I-9 that the employee completed when he was first hired. However, IF the employer chooses to complete a new Form I-9 on this rehired employee, then the employer would also have to run a new E-verify case on this employee as well.
Answer regarding expired vs. non-expired identity document used in original I-9:
USCIS provides specific guidance on when to create a new E-verify case for a rehired employee whose identity document used on the original I-9 is now expired. USCIS does not provide guidance on when an employer has to create a new E-verify case for an employee whose identity document is still valid.
If the identity document the employee used in the original I-9 when first hired is now expired, USCIS specifically gives employers the option to run or not run a new E-verify case. If the employer chooses to complete a new I-9 on the rehired employee, the employer must also create a new E-verify case. If the employer chooses to update Section 3 of the original I-9, the employer does not have to create a new E-verify case.
Based on USCIS’s guidance that employers do NOT have to run e-verify on rehires with expired identity documents, we can infer that employers also do NOT have to run E-verify on rehires with still valid identity documents.
The specific language from USCIS guidance (with my emphasis added) is below:
“If you rehire an employee for whom you created an E-verify case and the employee’s previous Form I-9 lists an expired identity document (List B), then you may either:
1. Complete Section 3 of the employee’s previous Form I-9 and NOT create a new case for the employee in E-verify, OR
2. Complete a new Form I-9 for the employee AND create a new case in E-verify.”
Sources: uscis.gov/e-verify/questions. Handbook for Employers: Guidance for Completing Form I-9 (M-274)
Leyla Galmarini McMullen, Business Immigration Attorney
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